Finding Law

That the judge\u27s 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\u27t 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\u27t 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\u27re based. This Essay claims only that it\u27s plausible for a legal system to have its judges find law. It doesn\u27t 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\u27t do otherwise. In fact, judges can do otherwise: they can act as the law\u27s 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