Putting it All Together

The common law however is not just individual cases but the structure these cases create. Learning to understand and draw the rule out of cases is the first step to fitting these cases together. Law school explores the structuring of common law through the “casebook method”. The aspiration of the casebook method is that after reading many cases, a lawyer figures out the rules as they are fleshed out, case-by-case. Returning to the example above, perhaps a case will find that motorized wheelchairs are allowed, but later cases find that motorcycles, and bicycles are not. It stands to reason that tricycles and ATVs are not allowed either. Perhaps one way to stitch the cases together is to say that the law bans purely recreational vehicles, but not the “necessary” vehicles. Conversely, perhaps the principle is not recreational v. necessary, but rather, two-wheeled v. non- two-wheeled vehicle. A case that either explicitly says the law bans recreational vehicles, or a case that bans tricycles might foreclose the latter interpretation (implicitly, as tricycles would not fit the number of wheels theory). In theory, the cases form a structure together and over time, and this structure is the common law.

The Genius/Headache of the Common Law

A completely unrealistic portrait of law students- not enough crying depicted

The law student learns quickly that cases don’t fit together neatly. On top of the challenge of drawing different holdings out of the same case, cases are frequently contradictory, “wrong,” ambiguous, or leave gaps in the law. Recall how common law is “made” by the individual decisions of judges. This leads to all sorts of oddities from a practical point of view. Judges separated by time, space, and ideology may disagree on the right result or reasoning for cases, leading to contradictory decisions. Issues that are obvious are not litigated since litigation is costly and no one wants to waste money paying lawyers for a clearly losing position, leading to gaps in the law (sometimes what is widely accepted as “obvious” and thus not litigated turns out not to be so obvious if ever litigated). Sometimes cases read together make no sense, because judges disagree with each other, or even their earlier selves. Sometimes a judge may not give the “real” reasons for a decision, hiding the rationale under formalist logic and language (the admirers of the legal philosophy “legal realism” believe that this is the case in the vast majority, if not all, cases). Decisions may be poorly written, or argue from such abstract principles that they offer no substantive guidance. Returning to the example, cases in different states looking at the exact same rule could come out with different results on the impermissibility of tricycles in the park. A court may change its mind over time after seeing so many crying toddlers, or perhaps tricycle cases are never even brought to court.

The universe of cases that are relevant is another loose joint in common law. Both case-law and legislative statutes are sprawling. Laws read broadly can conflict with one another. For example, the legislature may pass a law that protects bikers in public spaces. If this law and the law that there are “No Vehicles in the Park” are read broadly, they would contradict. One way to solve this contradiction would be to read one law more narrowly than the other. The former rule can, perhaps, be read narrowly so that “protect” means to physically protect bikers from cars but not to protect the bikers’ right of way. Alternatively, the latter rule can be read narrowly so that a bike does not come within the scope of a “vehicle” at all. Another way to solve the contradiction is to find that one law binds the other because one law is superior or might already have a crave-out for another “No Vehicle in the Park, except for bikes”. An even easier way to resolve the issue would be for the judge to just ignore it. But even if lawyers and judges make an honest effort to address the relevant case-law, reasonable people can disagree on the scope of the reasonable law (for example, is biking a form of expression implicating the 1st amendment? Is the act of taking away the right to bike through a park equivalent to taking someone’s liberty and therefore implicates due process? etc).