Good Easter

2. Erie: Federal Withdrawal from American Common Law

Part 1

Eventually, the flaws in the American common law system began to cause problems. The most well known example of this was probably the incongruities between State and federal interpretations of law in matters which came into federal courts requiring an interpretation of a State’s laws. A State supreme court and federal courts would look at stare decisis in that particular State and develop conflicting interpretations of that State’s precedents. In a functional common law system the court later in time should have followed the decision of the earlier court regardless of the fact that they were in different parts of the American judicial system. As well, a functional common law system would have a higher court capable of resolving any differences that arose between a State and federal court regarding that particular State’s law. Instead, the conflicting interpretations continued and led to manipulation of the judicial system. If federal precedent of Georgia’s law was favorable and the Georgia Supreme Court’s precedent was not, the party who wanted federal jurisdiction would do everything it could to get into federal court and the party favored by Georgian precedent would fight just as hard to stay in Georgian courts.

Eventually, this came to be such an issue that the United States Supreme Court, sua sponte, decided that federal courts must follow a State courts’ precedents when deciding an issue dependant upon State law. This is the rather famous Erie Railroad Co. v. Tompkins case which is often described as the end of federal common law.

More accurately, the Erie decision was a withdrawal from the common law project. The federal courts would still be bound by cases from State courts and those State courts were still part of the common law project, but federal decisions about State law would only be binding, even in federal court, in so far as that State’s appellate courts had not spoken on the matter. If the 6th Federal Circuit had ruled that the common law crime of snipe hunting was illegal after dark and the Kentucky Court of Appeals chose to ignore the federal case and ruled that snipe hunting was actually only illegal in the afternoon, the decision from the Kentucky Court of Appeals overruled the federal court, even in federal court.

The case was a triumph of American federalism and a body blow to American common law. The one legal entity capable of making one American common law had abandoned the project. Imagine a different outcome wherein the Federal Supreme Court had embraced the common law and ruled that the federal courts had the final say under a due process theory (i.e. It is fundamentally unfair for a citizen to be subject to the whims and vagaries of a multiplicity of interpretations for which he cannot possibly have the notice of all as he passes from state to state. Therefore, American common law requires that federal interpretations preempt any and all state decisions to the contrary). Such a decision would have radically altered American jurisprudence and given us much more of a single law system. However, post-Erie, the States were left to wander in the common law wilderness without anyone to decide who was correct when their precedents contradicted each other.

Subsequently, States, left with no way to resolve their differences under the American common law as it stood, turned to extra-governmental entities for a solution.

The Money Quote From Jardines

The US Supreme Court, in a decision written by Justice Scalia, ruled today that if police enter a citizen's curtilage in order to have a dog sniff for potential drugs in the house the police have violated the 4th Amendment because they are outside of the scope of the implied invitation to walk to the door and knock in order to contact the citizen living there.

The best quote of the case:

"To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police."

American Common Law: What It Is & Why It Developed Problems

The common law is not Blackstone.

Yes, I hear the gasps and curses. And there’s even a few guys sitting in the back of the internet who muttered “Heresy!” But, wait, before y’all start piling up a cord of wood so you can burn me at the stake, let me explain.

People tend to have a poor understanding of what the common law is and what the common law was. Ask a new graduate of law school what the common law is and you will most likely get one of two answers: stare decisis or Blackstone. To be fair, this is not the young lawyer’s fault. Quite often, our law schools do a horrendous job of explaining what American common law is / was. This is because in large portions of our country the common law has been supplanted by a quasi-civil law system and I don’t think even many people who have been practicing, teaching or judging take the time to understand how the common law works - much less to explain it in a coherent way to young or prospective lawyers.

Neither Blackstone nor stare decisis encompass the entirety of American common law. Blackstone is a snapshot of British common law at a period close enough to our separation from Britain so that it provides a starting point for American common law. However, it is always possible to find other sources for common law as it existed in 1776 as well. There’s nothing particularly sacred about Blackstone; it’s just an easy place to look for a synopsis. American common law proceeds from Blackstone and other English sources. They are far from the final word.

Starting with the English common law, as limited by the American constitution, the American common law moved forward. It provided both substantive and procedural law and it grew and changed. The idea behind the common law was that the entire nation, from Alaska to Arizona to Virginia, was working together to develop one law that would govern us all. Judges in every State, and the federal government, were working together to develop one law. Almost perversely, the lack of computer legal resources and large libraries probably helped this process. A judge riding a circuit could only carry so many books with him and the local courthouse might not have much of anything either. Even a well stocked law library would probably have a book on evidence, the State’s statute book (one of those old monstrous tomes that were a foot and a half thick), and something along the lines of Corpus Juris or Amjur. If you were really lucky there might be a copy of United States Supreme Court Reports Lawyers' Edition which had both cases and treatises explaining the state of the law across the nation. There might also be a set of the State's published cases, but remember back in the day, before computer searches, this set of published cases was not nearly so useful. How would the judge in 1892 know that there was a case in 1795 that was directly on point? The answer is that he would not.

At this point we come to the point where we must start to discuss stare decisis. Back in the day, stare decisis was not as solidly established as it is now. Certainly, a State’s precedent was to be followed by a State court. However, unless it was in somebody’s book of important and relevant cases (Amjur, Corpus Juris, or the State equivalent), the only way someone would know it existed - no matter how much it was directly on point - was if he tripped over it by some happy accident. Additionally, cases from other States were not viewed as merely advisory. A decision from Alabama was just as much a part of the common law as any other decision and therefore when it quoted in Virginia it carried weight. Not so much as a Virginia opinion, but not so little that it could be easily ignored either. An opinion from another State carried its own stare decisis as part of the common law.

So, judges and lawyers without access to computers and limited access to expensive and bulky books would look first to their State’s statutes and if they were not clear or they did not cover the question then turn to the common books. A search through AmJur might provide a case specifically from the judge’s State, but more often it would give a general statement of the law with citation to leading cases from around the country. Thus, AmJur, Corpus Juris, and similar books were part of the common law and helped build toward one law across the entire land.

One of the advantages of the common law was that it allowed things to bubble up and become part of national law and procedure. Courts in Virginia might have to deal with issues involving the ancient common law crime of snipe hunting. They could define the element of “at the known proscribed time” as meaning “at night.' Then, North Dakota courts dealing with the same issue could look and see that this issue has been settled in Virginia and follow this precedent as common law.

Of course, this is a rather idealistic view of American common law and if you look closely at any idealistic model you will find flaws and the American common law system is full of flaws. Chief among these is the fact that America took a one sovereign system and split it among fifty-one sovereigns.

In England there was one final legal authority for the common law: the House of Lords. In the United States there were eventually fifty one final legal authorities for the common law - one for each State and the Federal Supreme Court. Thus, stare decisis, which was a boon to English common law, became the bane of American Common law. The House of Lords could decide that an element of illegal snipe hunting is that it must occur at night and this would be the law of the land. In the United States the Supreme Court in Wyoming could decide that snipe hunting was only illegal during daylight hours and the Supreme Court of Florida could decide it was only illegal after midnight and the Supreme Court of Nevada could decide it was only illegal in the afternoon. Because the United States Supreme Court is only authorized to decide issues that rise from the States which are constitutional in nature it could not decide common law matters unless they touched upon constitutional issues, or were raised in cases in federal courts (and even then the decision would have no precedential value in the States), and most common law questions, whether substantive or procedural, do not rise to a constitutional level. Thus, over time as various States’ Supreme Courts put their own spin on different areas of law the law actually became more diverse than common. This became more obvious as publishers undertook to make books which concentrated on a particular State’s precedents rather than on the nation as a whole.

Another failure of the fifty-one sovereigns American common law was fifty one legislatures. In England one sovereign, whether King or Parliament, passed statutes which instantly became part of the common law. In fact, Blackstone is replete with references to statutes and acts and defines the role of statutes in English common law as

STATUTES also are either declaratory of the common law, or remedial of some defects therein. Declaratory where the old custom of the kingdom is almost fallen into disuse, or become disputable ; in which case the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons ; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law : therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law : so that this was an enlarging statute . At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. beforementioned : this was therefore a restraining statute.

In the United States this kind of congruent growth of legislation as part of a national common law was difficult, if not impossible. Fifty one legislatures writing black letter law which either enlarged the common law or restricted it in each particular State or the federal system just added to the cacophony. A prime, and continuing, example of this is how the various States and the federal government deal with the problem of illegal drugs. The lack of consistency among the laws is perhaps the most consistent thing about them.

Of course, the traditional way of dealing with the legislatures' attempt to alter the common law has always been consistent. The law is limited to what it states it covers and affects nothing more. Thus, if Virginia were to pass a statute which dealt with advisement in a case of petit larceny that statute would apply only to cases involving petit larceny and nothing further – not even grand larceny. The common law practice of taking cases under advisement, which has developed and become a widespread practice, continues unchanged except that the judge must act in a particular manner in regards to its use with petit larceny. However, while this limited the damage the the legislatures could do to the common law it did not stop the divergences the legislatures kept putting into the laws of a particular State. It is also a doctrine that seems to have sadly fallen out of the knowledge and memory of far too many judges and justices sitting in appellate courts even in States which proclaim they are still common law states.

In the end, the lack of a single sovereign diverted most States and the federal government away from each other on many aspects of the law. Certainly, some basic definitions remained. A larceny remained the taking of the property of another with the intent to permanently deprive the other of that property. However, various details never dovetailed. For instance, the value of an item required to make its theft a felony varies from State to State. In Virginia it's $200, in Tennessee $500, and in Kentucky it's $1,000. This is a significant element and its statutorily defined by each State's legislature and thus it is extremely unlikely that there shall ever be one common resolution for this element across the entire United States.

Next Week . . . And Then Came the Codifications

Habemus Papam Franciscum: They Chose the Holy One

Amidst all sorts of speculation about whether the Church would choose an Italian, so the Pope would understand the workings of the Vatican administration, or a Brazilian, so the Pope would be from the country with the largest Catholic population in the world, the Cardinals went behind closed doors and chose the man most humble: a member of the Society of Jesus who is known for eschewing the finery of his office, championing social justice, and standing strongly behind the Church's moral teachings.

As I sat yesterday watching BBC online prior to the announcement they were rather confidently stating that it must be the Italian since the conclave had come to a conclusion so swiftly. They couched it in probabilities, but when Pope Francis was announced there was definitely a bit of shock and scrambling to figure out what was known about this man whom no one in the media had seriously thought might become Pope.  To top that off, they were confused by the choice of name.  To quote the slightly stunned announcer "A new name. That hasn't happened in a thousand years." Then they assumed it was a name fashioned after Francis of Assisi until someone pointed out that the new Pope was a Jesuit and therefore it might be fashioned after Francis Xavier.  Of course, these have very different implications and the announcers were not prepared to discuss the differences, or the possible synergy of the two, and they lapsed into silence on that topic.¹

Personally, I was most impressed when Pope Francis asked us to pray for him. A humble man demonstrating his humility. It will be interesting to see how he will imprint this humility upon the Church.

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¹  This is not to say that BBC's coverage was poor.  The BBC is still the best international news source, bar none. And, they didn't instantly start trying to shove the new Pope into a "conservative" or "liberal" stereotype, as I'm sure the American press coverage did.

How the International Criminal Court Works

Blogging, The 1st Amendment, & the Bar

Well, the latest round of the epic battle between Horace Hunter and the Virginia State Bar has been completed.  It's a mixed decision. It's also a correct decision.

For those of you who haven't been following this, the Bar first went after Horace for not having a disclaimer on a blog he had as part of his office's website.  When Horace stood his ground, the Bar expanded its complaint against him to include the fact that he put publicly available facts about his clients and their cases on his blog. At this point, the Bar was clearly over the line and while its disclaimer complaint was upheld, a panel of judges struck down the constitutional infringement.  Of course, both sides appealed to the Virginia Supreme Court.

Last week, Justice Powell, who may well be becoming my favorite Justice between this and her Baker dissent, decided that the panel judges were generally correct, but wrong in some of its details concerning the disclaimer.

To begin with Justice Powell shoots down the idea that the the blog in question is political instead of commercial.

"Indeed, unlike situations and topics where the subject matter is inherently, inextricably intertwined, Hunter chose to comingle sporadic political statements within his self-promoting blog posts in an attempt to camouflage the true commercial nature of his blog. . . . When considered as a whole, the economically motivated blog overtly proposes a commercial transaction that is an advertisement of a specific product."

Then, she goes on to consider whether Horace's use of information in the public record was constitutionally protected.

"The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom."

Having determined that lawyers actually do have the same constitutional rights as everyone else, she turns to the disclaimer.  She agrees that a disclaimer must be placed on the blog, but then actually goes back and reads the rule and shoots down the disclaimer previously mandated by the panel of judges because it did not require the disclaimer to be "in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results."  She does not offer a valid disclaimer, instead remanding the case for further determination.

There is only one nit I think I can pick with this opinion.  The Bar initially required Horace to put the disclaimer on each and every post he put up that discussed his cases.  The panel of judges only required it to be placed on the site once (presumably the way everyone does, as a note on the blog's frame).  When you've got parties this locked in battle, that's the kind of thing which could end up with them right back in front of the Justice Powell and her colleagues.  Personally, I think the Bar is overstepping when it tries to require the disclaimer on each and every post mentioning a case as long as the disclaimer is somewhere on the same webpage and follows the rules.  We'll see if this point gets litigated.

All-in-all, it's a well written, well supported opinion. Well worth reading if your are a lawyer in Virginia (or anywhere else) with a blog.

Hunter v. VSB