Academic theory and practice

By Legal Eagle

The other day, Lorenzo alerted me to this post on the Volokh Conspiracy on why academic lawyers failed to foresee that the US Supreme Court would be very negative towards Obama’s healthcare legislation. In the post, Adler argues that it is surprising that anyone expected academic lawyers to have any insight whatsoever into the views of the bench because of their interest in overarching theory rather than practice:

… I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy.  At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases.  Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be.  Constitutional scholarship in particular is increasingly focused on theory and less on the law.  In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.

This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle. The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf  whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go.  Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.

Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia.  The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left.  On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices.  This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court.  So, for instance, it’s easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it’s a Lochner-era decision, even though Bailey remains good law.  A practicing lawyer would have been less likely to make this mistake.  Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.

In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms. Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents. As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side.  This can be difficult to do, particularly when we have strong feelings about a subject. Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional.  And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures.  Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won’t receive an equally warm welcome in court.

Now I do not know enough about US Constitutional Law to express any opinion on the legality or otherwise of the Obamacare legislation, and nor am I going to get into a debate about the left-right divide in academia and practice. But this post sparked a train of thoughts in me about the relationship between academic theory and the practice of law, something in which I am naturally interested. My own area of scholarship, Anglo-Australian private law doctrine, has seen an increasing dislocation between the theories of private law scholars and the expressed views of the Australian High Court. And this saddens me, although I hope that it is a reversible process.

Put briefly, there are a number of theoretical strands in private law scholarship. I won’t go through them all, but I will mention four of the main ones which come to the top of my head:

  • Unjust enrichment scholarship;
  • Corrective justice scholarship;
  • Rights based scholarship; and
  • Law and economics scholarship.

As to where I fit…well, my position is a bit like my general approach to life really – I take what I like from each of them, but embrace none of them wholeheartedly.

Many practicing lawyers of my acquaintance see these theoretical debates as arid and bearing very little relation to their practice. I have heard it said that academic lawyers are concerned about the theoretical implications of marginal doctrines which very rarely arise in practice. One may well ask: does it really matter how we see causes of action from a theoretical point of view? Aren’t all these theories a case of ‘same deck of cards, different deal?’

My answer is that, yes, it does matter in a variety of ways. If you see certain cases as being alike according to your theory where such cases have not traditionally been thought of as analogous, it will have ramifications for the courts’ decisions in these areas and for the kinds of remedies available in cases. Theory also informs the way in which you approach the teaching of the law, its application to cases and its fundamental structure. If you see contract as involving compensation alone, for example, this has various ramifications for the decisions courts can make about contract law disputes brought before them.

I should also note the following for laypersons before I proceed any further. Our law comes from two main sources: legislation (which is enacted by Parliaments) and judge-made law (which consists of the common law, equity and judicial commentary on the interpretation of statute). Judge-made law generally develops incrementally, on a case-by-case basis. In order to fit a new case into an existing principle, it is necessary to analogise the case in some way to the cases which have gone before. However, at times, judges have have developed or ‘discovered’ new principles, or expounded upon the general structure they think that the law should take. Scholarship is quite different: it takes the existing principle and attempts to rationalise it according to some kind of scheme or theory which explains or ought to explain the law.

I will now explain each of the theories I have listed above, and the practical impact of those theories. This is a very rushed thumbnail tour – and if I fail to mention any academics who are prominent in the field, there is nothing personal about it – I am just quickly sketching the theories (without the kind of detailed analysis I would put into an academic article).

Unjust enrichment scholarship

The nature of unjust enrichment scholarship is to focus on the way in which we organise our private law causes of action. Goff and Jones’ Law of Restitution was the trail-blazing text in the area in the United Kingdom, and the late Professor Peter Birks was a major contributor to the field, with too many articles and books on the topic to mention. Birks drew many of his observations from his study of Roman law. He felt that the way that the common law divided its causes of action (between common law and equity, for example) did not really reflect a principled distinction. Instead, he drew distinctions between causes of action created by consent (eg, contract), causes of action created by wrongs (eg, tort, equitable wrongs) and causes of action created by unjust enrichment (eg, unjust enrichment). He had a fourth ‘catch-all’ category entitled ‘Other causes’. He derived this division from Roman law and civil law.

There are a number of things which follow from seeing the law in this way. Where a cause of action was created because of some wrong, it should be treated similarly to other causes of action created by wrongs, because like cases should be treated alike as a matter of principle. Thus, for example, analogies can and should be drawn between tort and equitable wrongs, even though one is traditionally a common law action sounding in compensatory damages and the other is traditionally an equitable cause of action giving rise to equitable remedies: see eg, Andrew Burrows, ‘We Do This At Common Law But That In Equity’ (2002) 22 Oxford Journal of Legal Studies 1. It also follows that the division between Equity and Common law, and the division between the remedies which are available for breach of obligations which arise in those two areas, are nothing more than a historical anachronism. Consequently, much of the restitutionary project involves rationalising and categorising causes of action according to alternative structures. The action for money had and received is no longer a ‘quasi-contractual’ common law cause of action, but a response to unjust enrichment, subject to the defences which flow from this categorisation (such as change of position).

I must confess to a liking for much restitutionary scholarship. I like looking at causes of action through the prism of wrongs, consent, unjust enrichment and other. Looking at law in this manner drew my attention to interesting similarities between causes of action and remedies which I had not previously considered. I am not, however, a restitutionary zealot, and my ardour for restitutionary theory as an overarching explanation of private law has cooled somewhat over the past five years or so. I think it is a useful way of analysing some cases, but I do sometimes get irritated when large chunks of private law are sought to be drawn into the restitution fold, and it is suggested that this is necessarily simpler or more easy. An example which comes easily to my mind is Lord Woolf’s statement in the Court of Appeal decision in Attorney-General v Blake [1997] EWCA Civ 3008, [1998] Ch 439 that an award of ‘restitutionary damages’ for skimped performance of a contract would be ‘simpler and more open’. (‘Skimped performance’ according to Lord Woolf is ‘where the defendant fails to provide the full extent of the services which he has charged the plaintiff’.) Contrary to this, in most cases of skimped performance, I argie it will not be simpler or indeed at all necessary to award ‘restitutionary damages’, because in the vast majority of cases, compensatory damages will still be adequate to put the claimant in the position she would have been in if the contract had been performed. The primary question in these cases is whether damages should be measured  according to the decrease in value or according to cost of rectification. [Should you wish to read more of this argument in detail, I can refer you to Chapter 7 of my book, to be published in May.]

In any case, the point is that during the height of popularity of restitutionary theory, there was a perceived tendency to reconfigure every area of private law as having restitutionary overtones, and to say that this was a simpler and more open way of looking at the law than the way it had been previously envisioned. My own position is that sometimes, looking at a cause of action as restitutionary is very helpful and simplifies the way in which the law operates. However, it does not necessarily follow that all restitutionary analyses are helpful or result in simplification. Nor does it follow the restitutionary analyses should be adopted uncritically.

The Australian High Court (in particular, Gummow J) reacted very negatively to unjust enrichment theory. Famously, in Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516, at [72] – [75], Gummow J said:

Considerations such as these, together with practical experience, suggest caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of “unjust enrichment”. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around.

In McGinty v Western Australia, McHugh J referred to Judge Posner’s description of “top-down reasoning” by which a theory about an area of law is invented or adopted and then applied to existing decisions to make them conform to the theory and to dictate the outcome in new cases. Judge Posner spoke of the use of the theory by its adherents:

“to organize, criticize, accept or reject, explain or explain away, distinguish or amplify the existing decisions to make them conform to the theory and generate an outcome in each new case as it arises that will be consistent with the theory and with the canonical cases, that is, the cases accepted as authoritative within the theory”.

As it happens, Lord Mansfield favoured the development of legal principle by a journey in the opposite direction. In Ringsted v Lady Lanesborough, his Lordship said:

“General rules are, however, varied by change of circumstances. Cases arise within the letter, yet not within the reason, of the rule; and exceptions are introduced, which, grafted upon the rule, form a system of law.”

Unless, as this Court indicated in David Securities Pty Ltd v Commonwealth Bank of Australia, unjust enrichment is seen as a concept rather than a definitive legal principle, substance and dynamism may be restricted by dogma. In turn, the dogma will tend to generate new fictions in order to retain support for its thesis. It also may distort well settled principles in other fields, including those respecting equitable doctrines and remedies, so that they answer the newly mandated order of things. Then various theories will compete, each to deny the others. There is support in Australasian legal scholarship for considerable scepticism respecting any all-embracing theory in this field, with the treatment of the disparate as no more than species of the one newly discovered genus.

On the other hand, the action to recover the moneys sought by the appellants after the failure of the purpose of funding Rothmans to renew its licence may be illustrative of the gap-filling and auxiliary role of restitutionary remedies. These remedies do not let matters lie where they would fall if the carriage of risk between the parties were left entirely within the limits of their contract. Hence there is some force in the statement by Laycock:

“The rules of restitution developed much like the rules of equity. Restitution arose to avoid unjust results in specific cases – as a series of innovations to fill gaps in the rest of the law.”

About 10 years ago, when this decision was handed down, I was outraged by Gummow J’s statement. But I have mellowed slightly now, in ways that I will explain in greater detail below. I believe that there is always be a place for top-down reasoning in the law.  Theory can shape the way in which the law develops, and academia can help to provide that structure. However, I also believe that we have to pay credence to the historical and practical ways in which the law has been structured, and that, as academics, we must pay regard to the reasons courts give for their decisions. There are sometimes — but not always — good reasons for why judges and lawyers have chosen to do things in the way that they have. Insofar as this represents Gummow J’s point, it is worth remembering. We must not forget that our legal system works by interpreting what the judges have said and applying it to new fact situations, and that we cannot stray too far from that. If a barrister appeared before a court, and posited a theory of what the law is which bears no resemblance to anything a court has said previously, it is likely she would get short shrift from the judge.

The tension between so-called ‘top-down reasoning’ and practical case-by-case decision making is that courts are supposed to make decisions according to precedent and according to the facts before them, not according to whether the case fits in with some bigger theoretical or organisational structure. But I believe that courts cannot help making decisions according to a broader theoretical structure, and that by choosing which cases are analogous and which are not, they are necessarily engaging in ‘top-down reasoning’. Indeed, courts must engage in some kind of explanation and organisation of existing case law in order for the common law to work (see a recent article by Darryn Jensen, ”Theories, Principles, Policies and Common Law Adjudication’ (2011) 36 Australian Journal of Legal Philosophy 34 for a clear explanation of this). Accordingly, I see Gummow J’s dichotomy between ‘top-down reasoning’ and ‘bottom-up reasoning’ as incoherent: courts necessarily do both at once when making a decision.

Interestingly, the reaction of the English courts has been quite different with regard to restitutionary theory: they have been much more open-minded towards it. I sometimes wonder why this is. Of course, part of it is because the New South Wales Equity system did not become fused with the common law until the 1970s, and many of the fiercest opponents to restitutionary theory are from the New South Wales Equity Bar. Restitutionary theory is said to commit ‘fusion fallacy’ (by mixing together that which should never be mixed — except procedurally — common law and equitable causes of action and remedies). As I noted recently, however, there are signs in Equuscorp Pty Ltd v Haxton [2012] HCA 7 that the newly constituted High Court may have mellowed somewhat towards restitutionary theory, and I am pleased by this.

Corrective Justice scholarship

Corrective justice theory emanates primarily from Canada (although there are some Australian and New Zealand adherents as well). The distinction between corrective justice and distributive justice is a distinction which is drawn in Aristotle’s Nichomachean Ethics. Aristotle distinguishes between two different forms of justice:

  1. Distributive justice (involving the sharing of property between persons according to their deserts); and
  2. Corrective justice (the justice which rectifies transactions between persons).

Distributive justice requires a geometrical proportion – that is, a person gets property or wealth according to their ‘just deserts’. Corrective justice requires an arithmetical proportion – that is, a person who takes from another is required to restore the loss or the value of the loss to the person who has been wronged.

Professor Ernest Weinrib has developed a further gloss on the concept of Aristotelian corrective justice, which he calls ‘normative corrective justice. He considers that normative corrective justice is the justifying principle behind all private law (which consists of tort, contract and restitution) as it serves to reduce a transaction to a bilateral private transaction between two parties. He theorises that all private law should comply with principles of normative corrective justice, and that any areas of private law which do not comply are illegitimate. His theory has proven very influential with many scholars and some courts. Weinrib says that Aristotelian corrective justice involves a restoration of equality once there has been a gain on behalf of one party and a loss at the expense of the other. It is the correlativity between the parties which creates the liability: one person gains at the other’s expense, and this creates a legal relationship. However, at first blush, this analysis cannot work with an area such as tort, where a defendant certainly causes a factual loss to a plaintiff, but does not receive any factual gain thereby. To get around this problem, Weinrib argues that loss and gain should be understood in normative terms rather than material terms, and that the trigger for corrective justice is normative wrongdoing in a Kantian sense. The parties can be regarded as notionally equal at the beginning of their interaction because of their status as self-determining agents, and corrective justice ensures that equality prevails after the interaction. Distributive justice has no place in private law according to Weinrib, as it necessarily involves a value judgment about who merits a resource, which renders law unacceptably ‘political’.

Weinrib is not the only person to advocate a corrective justice interpretation of tort law (Professor Jules Coleman is another prominent US scholar who has done so). Other scholars have taken Weinrib’s analysis and applied it to other private law areas such as contract, restitution and equitable causes of action. Weinrib is particularly concerned to establish that tort law should not be understood as relating to external social goals. It simply acts to correct wrongs, not to achieve efficient outcomes, or to deter wrongdoing, or to do anything else. Weinrib’s work can be understood as a reaction against US law and economics scholars (such as Richard Posner) and US critical legal theorists, each group of which understands law as being inextricably intertwined with external social goals.

The ramifications of Weinrib’s theory is that (a) private law exists solely to repair wrongs where there is a correlation between the defendant’s normative gain and the plaintiff’s normative loss and (b) policy considerations or considerations of wider societal aims have no place in his theory of law. Consequently, compensation is the sole function of private law, and there must be correlation between loss and gain.

I think it is fair to say that Weinrib has had no influence on Australian courts that I am aware of, although he has had some influence on the decisions of some Canadian courts. I am not a particular fan of corrective justice theory, as I regard the concept of normative loss and gain as too metaphysical to be useful as an analytical tool. Fundamentally, I am a pragmatist who believes that courts exhibit a varied mixture of motives in awarding remedies in private law (including compensation, deterrence and punishment). Further, I think it is impossible to divorce law from a political and social context: courts cannot help but consider the wider political and social context.

Rights Based Scholarship

This theory of private law again comes primarily from a tort lawyer, Professor Robert Stevens, although it has been later taken up in other areas of the law by other scholars (see eg, Ben McFarlane’s concept of a right against a right in property law). Tort law can be understood as courts vindicating the infringement of the rights of the plaintiff by the defendant rather than as compensating for foreseeable loss.

I find it helpful to consider private law as a mechanism for vindicating rights. I look at contract law remedies as a mechanism by which the court seeks to vindicate the plaintiff’s right to performance where the contract has been breached. I adopt some aspects of Stevens’ reasoning: for example, I consider that courts are often concerned to award the ‘next-best’ remedy to the primary right itself, although this has to be balanced against other considerations. In my concept of contract law, for example, the common law preferentially awards compensatory damages where this would provide an adequate substitute for performance, because this is less intrusive to the defendant than specific relief, even though it is a less perfect remedy. In other words, there is a balancing of the rights of the parties.

Judicial uptake of rights-based reasoning depends on the judge. Lord Hoffmann, who wrote the foreword to Stevens’ book, is an avowed fan. In Australia, tort still proceeds upon traditional lines.

Law and Economics scholarship

I have left this until last, even though it was probably one of the first theoretical approaches to law to gain judicial acceptance, but this was primarily in the USA. A law and economics approach looks at private law through the lens of whether it achieves ‘efficient outcomes’. One form of efficiency is ‘Pareto efficiency’, an economic concept which is used to ascertain whether a particular allocation of resources in society is economically efficient. Pareto efficiency will be achieved if there is no other allocation in which some other individual is better off and no individual is worse off. It focuses on allocative efficiency, not distributive efficiency or fairness. Law and economics scholarship seeks to ensure that the person who values a resource the most receives it, and that the person who is best placed to guard against certain risks is the one who has to assume those risks. For example, it makes sense that a manufacturer of products is liable for injury resulting from the product, because the manufacturer is best placed to guard against the risks of injury.

One of the most prominent theorists in law and economics is Judge Richard Posner, an academic and judge. One of Posner’s influential theories has been the notion of ‘efficient breach’ in contract. The idea of efficient breach is this. Suppose that A has made a contract with B for the sale of 100 widgets for $1 each. C’s factory breaks down and C offers A $200 for the same widgets. A should be allowed to breach her contract with B because this is an ‘efficient breach’. The person who values the resource the most has received it (C). B is no worse off because A will pay contractual damages to him, and A is better off. Consequently, the most efficient allocation of resources has been achieved. (I have a detailed discussion of efficient breach theory and when it does and doesn’t work in Chapter 4 of my book if anyone is interested).

The influence of law and economics in the USA has been very great. In Australia, there has not been judicial acceptance of economic theory in law. Indeed, in a series of cases, Australian and New Zealand courts have rejected efficient breach theory in no uncertain terms (see eg Butler v Countrywide Finance Ltd [1993] 3 NZLR 623, 635; Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530, 574–75; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, 285).

Again, my personal view is that law and economics can be a useful way of looking at the law, but that it contains a range of simplifying assumptions which do not hold true in real life (it’s economics after all!) and thus it should be treated with care. Further, I do not believe that efficient allocation of resources in society is the only aim of the law, nor should it be. Nonetheless, I find it very useful to think of the law of remedies as creating incentives to behave in certain ways, and to consider whether those incentives are an efficient way of making people behave as we want them to.

What of my own scholarship?

In my own work, I adopt an interpretive methodology, in that I attempt to enhance our understanding of the existing law and to suggests the directions in which the law should develop. I focus on the variety of motivations which may affect the decision of a court to impose of liability (including compensation, deterrence, punishment, mercy and desert). I draw on the four criteria suggested by Professor Stephen Smith for a comprehensive and persuasive interpretive theory:

  1. Fit (the extent to which the theory ‘fits’ the data it is trying to explain);
  2. Coherence (the extent to which the theory is consistent and intelligible);
  3. Morality (the extent to which the theory justifies the law’s claim to be a legitimate or morally justified authority); and
  4. Transparency (the extent to which the theory explains the legal reasoning of legal actors themselves).

Note that there is a a requirement in interpretive theory to consider and explain the legal reasoning of the judges, and to try and explain how this fits with the theory. Pace Gummow J, all the theories I have mentioned above are interpretive theories. The academics who espouse the various theories attempt to fit the existing law into their theoretical structure, to explain the legal reasoning of the judges and to theorise the best approach in the future. Different academics put different weights on the various factors (for example, corrective justice theorists put a lot of weight on morality, whereas I do not emphasise it). My personal concerns are coherence, fit and transparency. In theorising about law, I seek to make things clearer for judges, litigants, individuals who enter into contracts and for other academics. My concern is to posit a system whereby people can reasonably predict what kind of liability they are likely to incur and understand why and how the system works or should work.

There can be a temptation, however, to simply cite a case as authority for a particular theoretical proposition when the court did not say anything of the kind in its reasoning, and it is only when one looks at the case through a particular theoretical framework that it can be read as authority for that proposition. (I’m sure there must be times when I’ve done this myself.) As academics, we have to be careful about doing this, and to acknowledge that the court did not actually justify its conclusion in those terms. I suspect that some of Gummow J’s irritation at restitution scholarship stems from his perception (rightly or wrongly) that restitution scholars do this. Certainly one wouldn’t get away with sidestepping the reasoning of the court and applying a theoretical interpretation if one were trying to argue it in the court room.

When you are in practice as a litigator, you have to put aside your own intellectual biases and argue the case as best you can for your client, regardless of whether you believe it or not. In addition, part of arguing your case convincingly is to imagine how the other side will present its case, and to try to counter that. You also have to have a very good understanding of your audience (the judge or judges who will hear your case) and to understand what arguments will best appeal to them. For example, if I were trying to justify account of profits for breach of contract to Gummow J, I would not point to the possibility of creating efficient incentives for contracting behaviour, nor would I point to restitution for wrongs theory. I would present accounts of profit for breach of contract as part of equity’s auxiliary jurisdiction, similar to the grant of specific relief for breach of contract, and I would point to a series of historical cases where courts have given such awards. In other words, I’d present my argument in such a way as to make agreement easy for his Honour – slotting it into his existing belief systems so that it was palatable and easier to accept. I personally believe that awards of accounts of profit for breach of contract are justifiable for all the reasons stated above, but you have to be cognizant of your audience, and emphasise the ones that work.

Concluding thoughts

In any case, it follows that I think Adler is right: academics are not the best people to ask to predict the approach of a bench towards a particular argument, because in a sense, that’s not really our job. Of course, it is always absolutely fantastic if a judge does think that your work is convincing and cites it in a judgment, because it is a vindication of your work, but judges are not the sole audience for whom we write our analyses.

As to the correct relationship between theory and practical law – I think the two should work closely together. When the theory becomes too divorced from the actuality of law then I feel that it loses its worth. This is why I think it is important that academics mix with the judiciary and practicing lawyers, particularly when they work in an area such as mine which has a very large practical component. Conversely, when practical law becomes too divorced from theory, I think it can mean that courts lose sight of the broader ramifications of their decisions. Academic articles can point out matters that a court missed, or directions in which judges may wish to consider developing the law. They can draw together the law in ways that courts do not have a chance to do when resolving an individual dispute. Additionally, I think that it is really useful to look at the law through the prism of different theories. I have found it useful to look at private law through all of the theories I note above. Even where I disagree with a theory profoundly (as I do with corrective justice theory) this is also useful because it makes me aware of why I believe that the law is different to the way in which corrective justice theorists portray it. The Australian High Court’s closed-minded approach to restitutionary theory always bothered me. I don’t mind if they don’t take it on board entirely: but I would like them to consider it with an open but critical mind.

As an academic, I do not want to get too divorced from the practice of law, so that I am writing for other theoreticians but not writing anything that is of interest to those in practice or in the wider world. We have to ensure that we expose our theories to many different people as well (not only other academics, but also judges, practitioners, students and laypeople). Ultimately, this is why I blog: to expose my ideas to a wider audience, and to get constructive input. I also want practitioners and judges to remain open-minded to the possibility of theory positively influencing the way in which they apply and approach the law. If we all work together and listen to one another, perhaps we can make our society fairer (and yes, I strongly believe that private law is the oil that makes the wheels of society run more smoothly and fairly).


  1. Posted April 13, 2012 at 4:27 pm | Permalink

    Fascinating. On Prof. Stephen Smith’s four criteria, this one:

    Morality (the extent to which the theory justifies the law’s claim to be a legitimate or morally justified authority)

    strikes me, at least as defined, as wrongheaded. Obviously, there is always a question of legitimate authority, but that is not a moral question as such. There is also the question of right treatment of people, but that is not a matter of authority per se provided any given actor has not overstepped their legitimate authority. It seems to be running two different things together in an unfortunate way.

  2. Posted April 13, 2012 at 7:56 pm | Permalink

    Looking at your summary of Birks, I’m struck by how incredibly Roman it is — it could come from Gaius, the most ‘principled’ of the Roman jurists. Ulpian, not so much — he’s much more fond of stories, clearly drawn from practice (almost certainly his own). He’s full of ‘this bloke walked into a bar’ or ‘this lady inherited a property in Tuscany’ that read like problems you get in practice.

    And sometimes the little shit doesn’t provide solutions, either (although that may not be his fault; most of Ulpian we have only via Justinian’s CIC, while Gaius survived independently).

    The only time Gaius gets on his high horse is when contrasting the (greatly improved) position of women in his own day with that under the earlier law, with comments along the lines ‘we’re properly civilised now, yadda yadda’, which has led some Romanists to argue that ‘he’ is actually ‘she’. Not sure if that’s true, tbh — men are perfectly capable of being feminists if they want to be.

  3. derrida derider
    Posted April 13, 2012 at 7:59 pm | Permalink

    Feh, everyone knows that if the PPACA had been put forward by President Romney then the Supreme Court would never have even heard this case. This is about partisan politics, not law.

  4. Posted April 13, 2012 at 8:32 pm | Permalink

    [email protected] One subordinate court ruled the mandate unconstitutional, two constitutional and one left it open. I think SCOTUS would have heard the case regardless of who was Prez. Check the post LE linked to on underestimating of the anti-mandate case.

    If the mandate is ruled unconstitutional 5:4, that would be an unfortunately narrow decision. But the High Court has had a few of those too.

  5. kvd
    Posted April 14, 2012 at 4:40 am | Permalink

    LE – total layman speaking – where could I find an example of the “other” that you speak of within unjust enrichment scholarship? I must confess I don’t particularly like ‘sundry’ as a classification unless it forms a very minor part of the whole.

    Or, if you’d just confirm that your “other” is indeed just a very limited category compared to “wrongs, consent, unjust enrichment”. And thank you for a very interesting post.

  6. Patrick
    Posted April 14, 2012 at 9:02 am | Permalink

    DD, probably you mean that a President Romney would have done a better job of it. You are correct, also, in pointing out that there is a big difference between a ‘fundamental principles’ constitutional challenge to an overwhelmingly popular law and an overwhelmingly unpopular one.

    LE, I think that’s an incredibly sensible view you have! My fundamental objection to equity at Melbourne, and Michael Bryan in particular, was that they were simply wrong as to the Australian law. I didn’t really give a rats’ proverbial what some Canadian court had concocted because I knew, as a matter of as near a certainty as exists in law, that no Australian Court was going to within a country mile of it for decades, and no-one but no-one actually cared if Kirby P/J loved it.

    But ‘top-down’ reasoning is particularly useful, ironically, when it comes to pure common law questions like LPP or the late 90’s ‘unified common law’ cases. Even generically, if you are going to construct an argument from precedent as to the application of the law in novel circumstances, your argument will be more robust if it is coherent within a ‘top-down’ framework as well. That is what (hopefully) gives you the basis for excluding the less helpful precedents and for applying the line of reasoning you are arguing for, when, as often, the cases themselves are not in fact clearly determinative one way or the other (that fact pattern usually only arises in tax when the ATO is quite happy to run cases in the face of decided precedent because some senior tax officer thinks they are more right than the courts!).

    Great post, even if it actually sidesteps Adler’s fundamental point 😉

  7. TB
    Posted April 14, 2012 at 9:49 am | Permalink

    Hi LE — great post! I’ve been thinking about these issues a lot since your Remedies class, and this is a very helpful overview. The Jensen article also seems to address something I’ve been wondering about for a while, so I’ll check that out as well.

  8. Posted April 14, 2012 at 3:44 pm | Permalink

    The ‘other’ category was nicked from Gaius. One of the things he put in there was innkeepers’ liability (which worked the same way in Roman law as it did at common law before statutory modification).

    At earlier stages in Roman history there were various oddities in the ‘other’ pot as well. Before the Romans developed a proper appellate system, there was scope to sue an ‘erring judge’ (this was intended, one suspects, to overcome the problem of what Italians call ‘la bustarella’), but it was discovered that it compromised the independence of the judiciary.

    In later law (by the time Gaius and Ulpian were writing), the Romans had developed (a) an appellate structure and (b) the concepts of ne bis in idem (double jeopardy) and res judicata (judicially decided matters).

  9. derrida derider
    Posted April 14, 2012 at 5:30 pm | Permalink

    “If the mandate is ruled unconstitutional 5:4, that would be an unfortunately narrow decision.” – Lorenzo

    That’s not the problem – the problem is that everyone knows in advance exactly who the 5 will be.

    But I’m derailing the thread of what was a thoughtful and considered post, and one on which I am not qualified to comment. Sorry, I’ll butt out now.

  10. kvd
    Posted April 14, 2012 at 5:38 pm | Permalink

    [email protected] I hope nobody else avails themselves of ‘hightlight/right-click’ function in Firefox to translate/search ‘la bustarella’. Had to search somewhat to get past the ‘show us your boobs’ references. Hope the MIB weren’t watching.

  11. kvd
    Posted April 14, 2012 at 5:45 pm | Permalink

    the problem is that everyone knows in advance exactly who the 5 will be

    No, the problem is the insult you infer by suggesting the highest US court will decide a basic question of law by reference to their supposed ‘political leanings’ as opposed to their understanding of the law.

    Makes a mockery of the whole system, imo.

  12. Posted April 14, 2012 at 6:31 pm | Permalink

    [email protected]:

    That’s not the problem – the problem is that everyone knows in advance exactly who the 5 will be.

    On that argument, everyone knows in advance who the 4 will be too. Why is it not equally a criticism of them? There is a presumption that one interpretation is “obviously” correct which strikes me as unwarranted the moment one got divergent lower court decisions.

  13. Posted April 14, 2012 at 8:33 pm | Permalink

    [email protected] Unpredictability is more reassuring in that sense. But our jurisprudence is not corrupted by some equivalent of Roe v. Wade.

    I am all in favour of women having control over their own fertility, but that decision was a disaster by turning into a judicial issue something that should have remained a legislative/political one.

    But at least Roberts CJ has a sense of humour. How often to 9-0 decisions get to have a closing line such as:

    The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

  14. Patrick
    Posted April 15, 2012 at 5:52 am | Permalink

    It was a very witty ending in light of the discussion that preceded it. Roberts does like witty lines in judgements.

    I don’t think there is such a problem as all that, btw. First, Lorenzo’s quite right. Second, the WoT cases for example weren’t easily predicted do there us a degree of anecdote replacing data. Third, there are a lot of non-controversial cases where I can tell how most Australian Fed Court/High Court judges will ‘vote’, just because I’m familiar with their reasoning in previous cases. Fourth, I think that, but sometimes I’m wrong, as you might all be on this case (and probably would have been on Hamdam and a few others).

  15. derrida derider
    Posted April 18, 2012 at 8:03 pm | Permalink

    Oh come on, people. If you seriously believe the US Supreme court has not been carefully stacked (yes, by both sides) over a long period with people selected for their political reliability rather than their eminence as judges, then you are living in a fantasy world. The extraordinary behaviour of the court in Bush vs Gore and, on the other side, Roe vs Wade (on which I actually agree with Lorenzo) should tell that. That and the fact that approval of nominations to the Court consistently split along party lines in Congress.

    Yes, kvd, it is an insult to them to say that – but it is an insulting truth.

  16. kvd
    Posted April 19, 2012 at 4:21 am | Permalink

    [email protected] of the current occupants, 3 of the last 4 confirmed appear to have been confirmed on close to party lines as you say, the rest not so much – including 4 with overwhelming bipartisan support. So I just don’t see how you get your “approval consistently split along on party lines”.

    What appears to have happened fairly recently (10-15 years or so?) is the automatic analysis and labelling of SCOTUS decisions as being politically biased, politically driven. My comment was more directed to this: if one side or the other of the increasingly bitter divide genuinely believes this, then it makes a mockery of the whole process, and removes one of the basic foundations of the US system of governance.

    On the other hand if you are correct in your cynicism, then I hope that is one particular American disease we do not catch.

  17. Posted April 19, 2012 at 2:52 pm | Permalink

    [email protected] Yes and no. There seems to be a quality limit to partisanship. The Miers nomination, for example, failed the quality test. Elena Kagan seems to have been pushing the envelope a bit from the other side.

    Bush v Gore had two key decisions: 7-2, 5-4 and flowed from a previous 9-0 decision. There seem to be cases that push partisan buttons far more than others.

  18. Posted June 1, 2012 at 6:37 am | Permalink

    On partisanship and American judges, Republican appointed judges have ruled in a gay-friendly way yet again. This is becoming a pattern.

    Republican-appointed judges have also done the odd pro-evolution anti-creationist ruling too.

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