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«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»

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Common-Law Courts in a Civil-Law System:

The Role of United States Federal Courts

in Interpreting the Constitution and Laws



Delivered at

Princeton University

March 8 and 9, 1995

ANTONIN SCALIA is Associate Justice of the United States

Supreme Court. He was educated at Georgetown University and the University of Fribourg, and received his law degree from Harvard University, where he was the note editor for the Harvard Law Review. He has served as general counsel for the Office of Telecommunications Policy in the Executive Office of the President, and as an assistant attorney general in the Office of Legal Counsel at the U.S.

Department of Justice. He was a professor of law at the University of Virginia and the University of Chicago, a visiting professor at Georgetown University and Stanford University, and a scholar in residence at the American Enterprise Institute. He was nominated to the U.S. Court of Appeals in 1982, and took the oath of office for the Supreme Court in 1986. He is the author of A Matter of Interpretation: Federal Courts and the Law (1997).

I The title of these lectures, as I assume those who are not here by accident have been advised, is “Common-Law Courts in a CivilLaw System: The Role of United States Federal Courts in Interpreting the Constitution and Laws.” That title is a reflection of one of my concerns with modern American legal education, and one of the reasons I believe my philosophy of statutory construction in general (known loosely as textualism) and of constitutional construction in particular (known loosely as originalism) is repugnant to the first instincts of much of the legal profession. In this first day’s lecture, I intend to describe generally the common-law system, and how it is taught, and to contrast it with the work of statutory construction that is the principal business of modern courts. In tomorrow’s lecture I will discuss some of the techniques of textual interpretation, including those particularly applicable to the constitution.

It is difficult to convey to someone who has not attended law school the enormous impact of the first year of study. Many students remark upon the phenomenon: It is like a mental rebirth, the acquisition of what seems like a whole new mode of perceiving and thinking. Thereafter, even if one does not yet know much law, he -as the expression goes -“thinks like a lawyer.” The overwhelming majority of the courses taught in that first year of law school, and surely the ones that have the most impact, are courses that teach the substance, and the methodology, of the common law -torts, for example; contracts; property;

criminal law. W e lawyers cut our teeth upon the common law.

T o understand what an effect that must have, you must appreciate that the common law is not really common law, except insofar as judges can be regarded as common. That is to say, it is not “customary law,” or a reflection of the people’s practices, but is rather

–  –  –

law developed by the judges. Perhaps in the very infancy of the common law it could have been thought that the courts were mere expositors of generally accepted social practices ; and certainly, even in the full maturity of the common law, a well established commercial or social practice could form the basis for a court’s decision. But from an early time -as early as the Year Books, which record English judicial decisions from the end of the thirteenth century to the beginning of the sixteenth -any equivalence between custom and common law had ceased to exist, except in the sense that the doctrine of stare decisis rendered prior judicial decisions “custom.” The issues coming before the courts involved, more and more, refined questions that customary practice gave no answer to.

Oliver Wendell Holmes’s inflential book T h e Common Law which is still suggested reading for entering law students — talks a little bit about Germanic and early English custom. But mostly it talks about individual judicial decisions, and about the judges, famous and obscure, who wrote them: Chief Justice Choke, Doderidge, J., Lord Holt, Redfield, C.J., Rolle, C.J., Hankford, J., Baron Parke, Lord Ellenborough, Lord Holt, Peryam, C.B., Danby and Brian, Brett, J., Cockburn, C.J., Popham, C.J., Hyde, C.J., and on and on and on. Holmes’s book is a paean to reason, and to the men who brought that faculty to bear in order to create AngloAmerican law.

This is the image of the law -the common law -to which an aspiring lawyer is first exposed, even if he hasn’t read Holmes over the previous summer as he was supposed to. You all know about the case-law method, brought to movies and TV by the famous Professor Kingsfield. The student is assigned to read a series of cases, set forth in a casebook, designed to show how the law developed. In the field of contracts, for example -to take a course I once taught -he reads, and discusses in class, the famous old case of Hadley v. Baxendale,1 decided a century and a half ago by Ex, 341, 156 Eng. Rep. 145 (1854).

Common-Law Courts in a Civil-Law System [SCALIA] 81 the English Court of Exchequer: A mill in Gloucester ground to a halt (so to speak) because of a cracked crank-shaft. T o get a new one made, it was necessary to send the old one, as a model, to the manufacturer of the mill’s steam-engine, in Greenwich. The miller sent one of his workers to a carrier’s office to see how long the delivery would take; the worker told the carrier’s clerk that the mill was stopped, and that the shaft must be sent immediately.

The clerk replied that if the shaft was received by noon it would be delivered the next day. The miller delivered the shaft to the carrier before noon the next day and paid the fee to have it transported; but because of the carrier’s neglect it took several additional days to be delivered, with the result that the mill took several additional days to get back into service. The miller sought, as damages for breach of the shipping contract, his lost profits for those days, which were of course many times what the carrier had received as the shipping charge. The carrier said that he was not liable for such remote consequences.

Now this was a fairly subtle and refined point of law. As with most points that reached the stage of litigation, it could not really be said that there was a general practice which the court could impose as common, customary law. The court decided, essentially, that the carrier was right, and it laid down the very important rule, that in a suit for breach of contract not all damages suffered because of the breach can be recovered, but only those that “could have been fairly and reasonably contemplated by both the parties when they made [the] contract.” The opinion contains some policy reasons for the result, citation of a few earlier opinions by English courts, and citation of not a single snippet of statutory lawthough counsel arguing the case did bring to the court’s attention the disposition set forth in the French Civil Code. For there was no relevant English statutory law; contract law was almost entirely the creation of English judges.

I must interject at this point (the old contracts professor in me compels it), that even assuming the new rule that only reasonably The Tanner Lectures on Human Values foreseeable damages are recoverable, the miller rather than the carrier should have won the case. The court’s opinion simply overlooks the fact that the carrier was informed that the mill was stopped; it must have been quite clear to the carrier’s clerk that restarting the mill was the reason for the haste; and that profits would be lost while the mill was idle. But if you think it is terribly important that the case came out wrong, you are not yet thinking like a lawyer-or at least not like a common lawyer. That is really secondary. Famous old cases are famous, you see, not because they came out right, but because the rule of law they announced was the intelligent one. Common-law courts performed two functions: One was to apply the law to the facts. All adjudicators -French judges, arbitrators, even baseball umpires and football referees -do that. But the second function, and the more important one, was to make the law.

If you were sitting in on Professor Kingsfield’s class when Hadley v. Baxendale was the assigned reading, you would find that the class discussion would not end with the mere description and dissection of the opinion. Various “hypotheticals” would be proposed by the crusty (yet, under it all, good-hearted) old professor, testing the validity and the sufficiency of the “foreseeability” rule. What if, for example, you are a blacksmith, and a young knight rides up on a horse that has thrown a shoe. He tells you he is returning to his ancestral estate, Blackacre, where he must be that very evening to claim his inheritance, or else it will go to his wicked, no-good cousin, the Sheriff of Nottingham. You contract to put on a new shoe, for the going rate of three farthings.

The shoe is defective, or is badly shod, and the knight reaches Blackacre too late. Are you really liable for the full amount of his inheritance? Is it reasonable to impose that degree of liability for three farthings? Wouldn’t the parties have set a different price if liability of that amount had been contemplated? Ought there not be, in other words, some limiting principle to damages beyond mere foreseeability? Indeed, might not that principle -call it Common-Law Courts in a Civil-Law System [SCALIA] 83 presumed assumption of risk -explain why Hadley v. Baxendale reached the right result after all, though not for the precise reason it assigned?

What intellectual fun all of this is! I describe it to you, not please believe me -to induce those of you in the audience who are not yet lawyers to go to law school. But rather, to explain why first-year law school is so exhilarating: because it consists of playing common-law judge. Which in turn consists of playing king devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind. What a thrill! And no wonder so many lawyers, having tasted this heady brew, aspire to be judges!

Besides learning how to think about, and devise, the “best” legal rule, there is another skill imparted in the first year of law school that is essential to the making of a good common-law judge.

It is the technique of what is called “distinguishing” cases. It is a necessary skill, because an absolute prerequisite to common-law lawmaking is the doctrine of stare decisis -that is, the principle that a decision made in one case will be followed in the next.

Quite obviously, without such a principle common-law courts would not be making any “law”; they would just be resolving the particular dispute before them. It is the requirement that future courts adhere to the principle underlying a judicial decision which causes that decision to be a legal rule. (There is no such requirement in the civil-law system, where it is the text of the law rather than any prior judicial interpretation of that text which is authoritative.

Prior judicial opinions are consulted for their persuasive effect, much as academic commentary would be; but they are not binding.) Within such a precedent-bound common-law system, it is obviously critical for the lawyer, or the judge, to establish whether the case at hand falls within a principle that has already been decided.

Hence the technique -or the art, or the game -of “distinguishing” earlier cases. A whole series of lectures could be devoted to this subject, and I do not want to get into it too deeply here. Suffice to say that there is a good deal of wiggle-room as to what an The Tanner Lectures on Human Values earlier case “holds.” In the strictest sense, the holding of a decision cannot go beyond the facts that were before the court. Assume, for example, that a painter contracts to paint my house green, and he paints it instead a god-awful puce. And assume that not I, but my neighbor, sues the painter for this breach of contract. The court would dismiss the suit on the ground that there was no “privity’’ of contract: the painter made his deal with me, and not my neighbor. Assume a later case in which a computer company contracts to fix my home computer, which has been malfunctioning; it does a bad job, and as a consequence my wife loses a whole series of valuable files that it takes many hours to replicate. She sues the computer company. Now the broad rationale of the earlier case (no suit will lie where there is no privity of contract) would dictate dismissal of this complaint as well. But a good commonlaw lawyer would argue (and some good common-law judges have held) that that rationale does not extend to this new fact situation, in which the breach of a contract relating to something used in the home harms a family member, though not the one who made the contract. The earlier case, in other words, is “distinguishable.” It should be apparent that, by reason of the doctrine of stare decisis, as limited by the principle I have just described, the common law grew in a peculiar fashion -rather like a scrabble-board.

No word previously spoken could be erased, but you could add qualifications to it. The first case lays on the board: “No liability for breach of contractual duty without privity”; the next player adds “unless injured party is member of household.” And the game continues.

As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge- the Holmes, the Cardozo -is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and Common-Law Courts in a Civil-Law System [SCALIA] 85 then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule -distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on.

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