Observations on the Law

These are just a couple of more or less random observations I've had about the broad workings of the legal system since I arrived at law school. The first concerns my new-found appreciation for the "cases and controversies" rule, and the second is my reaction to an aspect of law that I had literally never heard of before coming to law school, the Restatements.


Cases and Controversies

Article III, Section 2 of the United States Constitution grants the federal courts jurisdiction over certain classes of "cases" and "controversies." For instance, "all Cases, in Law and Equity, arising under this Constitution..." or "Controversies between two or more States." There are a number of other categories, which collectively make up the constitutional boundaries of federal subject matter jurisdiction. The Supreme Court has fashioned, out of Article III, Section 2, a set of justiciability doctrines limiting what can count as a "case of controversy." The courts may not issue advisory opinion, as the Court informed Thomas Jefferson in 1793. The plaintiff (in a civil rather than criminal matter) must have personally suffered an injury, according to their claim. The claim cannot be based on events that might happen at some point in the future, but might not. And there must be some way for the courts to grant effective relief. These last three are known as the doctrines of standing, ripeness, and mootness, and are the practical implication of the no-advisory-opinion principle.

In the actual caselaw, and particularly the recent caselaw, the operation of these doctrines, and most importantly the standing doctrine, is to keep what seem like good and important cases out of court on technicalities. The conservative Justices have a striking hostility to letting people get in a court-house door, which I've seen across several of my classes so far, and Scalia in particular has withering contempt for environmentalists' theories of standing. So I tend to find the whole "cases or controversies" set of rules to be mostly an unfortunate annoyance. But I am reminded of their central importance as I actually study some law. Focusing on the particular facts of an individual dispute, and on the necessity of reaching one result or another, can really focus the mind on what a case really says.

NFIB v. Sebelius is actually a good example of how this works. If you read the text of Roberts' majority opinion, you find a lot of sound and fury about how the individual mandate is "unconstitutional" under the Commerce Clause, but then is saved by the taxing power, or something. Or you could just notice that the damn thing got upheld, except for a little modification to the Medicaid expansion the Court made. And it is my contention that the latter is, in many ways, more informative. Because all the case really tells us is that something exactly like the PPACA is constitutional. Well, except for that Medicaid expansion bit, which is a truly strange opinion in many ways. Now, sometimes a Court will do what my contracts professor Ian Ayres says they should do more often (in contracts cases at least), and suggest how a future case would have to differ from the current one in order for the result to change. But in a sense that's always a bit of dictum. The holding is, ultimately, for plaintiff or defendant, or some strange hybrid of the two.

When, therefore, I am reading a case in one of my casebooks, by far the most helpful pieces of information are the facts of the case, in enough detail to ascertain the basic thrust of the legal claims and/or issues, and which side won. If I'm reading a negligence case, whether the plaintiff or defendant prevailed tells me almost everything I need to know. And because our legal system has been around for a whole lot of years, we can add up the results of each individual case or controversy and interpolate among them to perceive the fabric of the law. But that's only, really, an expectation that barring some sort of change like cases will be decided alike; consequently, there's a limit on how much a case can ever tell us about the proper or expected disposition of an unlike case. Roberts upheld the ACA. He fussed a lot about why he was upholding it, and people like to say that he very cleverly used the case to limit the Commerce Clause without attacking the President's signature law. But he did uphold it, which means that the precedent says that things like the ACA are valid. It's never been clear to me how that limits Congressional power, at least if Congress reads the decision and isn't an idiot about describing its future laws as taxes rather than as Commerce Clause regulations, when in doubt.

I will also add that I have had two memo assignments so far for my constitutional law class, the first of which concerned an issue arising in a specific case and the second of which does not. So far at least I find the latter much more confusing to think about, mostly because it is unclear what the consequences of the two answers I might give would be. There are a lot of advisory opinions that it would be easy to issue. I can say with confidence, for instance, that if a state passed a slavery law tomorrow it would be unconstitutional, and that if for some reason the American people elected me President in 2016 I would be ineligible to serve due to my excessive youth. But most issues have a lot more nuance than that, and pretty much any time there's nuance the factual details of a case will be essential. Who are the plaintiffs? How do they claim they were wronged? What happens if we hold for plaintiffs? For defendants? These are crucial questions; in many cases, the central legal question cannot really be address without knowing many of their answers.

The law is, ultimately, just a map from the space of all possible cases to their correct dispositions. Under the presumption that cases are all rightly decided, the case law provides a sampling of that map, a series of data points scattered across the vast possibility space. We humans then use words to describe the patterns we see, but the results determine the pattern, not the other way around; the procedures of our legal system make it so. Knowing where you are in the case-space and what result is appropriate at that point is a lot more useful than knowing the words used to describe the patterns but not where in the space you are. The constitutional focus on specific, individual cases and controversies is what allows us to focus on the points and let the patterns fill themselves in.


On the Restatements

I had never heard of Restatements two months ago. Literally. Then I got to law school, and they're everywhere. Well, mainly in torts and contracts, the common law courses. The Restatements of the Law are published by the American Legal Institute, which Wikipedia describes as "an organization of legal academics and practitioners founded in 1923." The point of the ALI was to look at the common law and, basically, take the various data points I alluded to in the conclusion of my first musing and write up descriptions of the patterns. Courts can then look to the Restatements for guidance in knowing what the common law is, and what it has been all along, in theory; that's the supposed force of the word "restatement," although in practice they do far more than restate. At the outset of the project, Benjamin Cardozo suggested that the Restatements would be "something less than a code and something more than a treatise."

What I find interesting about this is that is, in large part, an attempt to shift the common law toward the practices of civil law countries. Not exactly because the Restatements act as codes, for they lack force of law, though as Cardozo sort of suggests I think it's certainly more like a code than just what the common law had been without them. No, what interests me is that the Restatements are essentially scholarly works that are given something more than just persuasive authority. They are presumptively, or so they claim, embodiments of the precedents which do have binding authority. And courts in many cases seem to take them rather seriously, though obviously any actual statutes can override their provisions and courts are technically free to reach different conclusions anyway. I find this interesting because one of the differences I remember discussing in Steve Calabresi's comparative constitutional law class between common law and civil law is the role of the academic. In civil law countries, apparently, legal academics play something like the role judges play in common law systems, or at least traditionally this was so. Because judicial precedents were not treated as law, when a court looked to decide a case it was more likely to look to what the academy had to say on the issue than what the judiciary had decided in similar cases previously.

And the Restatements feel kind of similar, their theoretical derivation from judicial decision-making notwithstanding. I'm no expert in the common/civil law distinction, so I don't want to press this point too hard, but I simply hadn't realized that there is a quasi-formal institution by which the works of legal scholars are given something like authoritative treatment in this country. Legal scholarship, certainly, can influence judges, and legal scholars can become judges and then write opinions, but it just had never occurred to me that something like the Restatements existed in our system. I'm not sure I think they are either good or bad, although it does occur to me to wonder how thoroughly the ALI examines its own biases and agendas; it simply wasn't what I expected, and I therefore wanted to comment on it. I have now done so, and will now go to sleep.