Stephen E. Sachs (Duke University School of Law) has posted Finding Law (California Law Review, 2019, Forthcoming) on SSRN. Here is the abstract:
That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.
This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English -- with a certain kind of reliability, but with no power to revise at will.
The second, "realist" criticism is that this law leaves too many questions open: when judges can't find the law, they have to make it instead. But uncertain cases force judges to make "decisions," not to make "law." Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force -- as law of the circuit, law of the case, and so on -- without altering the underlying law on which they're based.
This Essay claims only that it's plausible for a legal system to have its judges find law. It doesn't try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous ones in Erie, rest on the false premise that judge-made law is inevitable -- that judges simply can't do otherwise. In fact, judges "can" do otherwise: they can act as the law's servants rather than its masters. The fact that they can forces us to confront, rather than avoid, the question of whether they should. Finding law is no fallacy or illusion; the brooding omnipresence broods on.
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