Monday, February 13, 2017
I ask, just for fun, whether you have read Thurman Arnold’s “The Role of Substantive Law and Procedure in the Legal Process”. It is available courtesy of the Yale Law School’s Faculty Scholarship Series, here, and will also be found in 45 Harvard Law Review 617 (February, 1932). Yes, 1932.
He uses “procedure” in a special sense, rather than its classification as found in the law school curriculum (p 647, fn 44). Also used in a special sense is “substantive law” which is the body of legal precedent that has been established and which has been accorded reverence because of its attributes and those recognised in the legal system, and by society, attaching to courts. Substantive law concerns principles, whereas procedure is entirely practical. Procedure is not tradition-bound but changes in the light of practical requirements. Whereas substantive law may be restated, procedure can be reformed. The difference is only in attitude, “any doctrine may be treated as procedure and the problem discussed, or as substantive law and the principle stated” (p 643).
Given these special definitions of substantive law and procedure it is plain that Arnold is not talking about what we would call substantive law and procedure. So, what is he saying?
His fear is that the multiplication of precedents through increased reporting of cases will reduce the law to confusion and chaos. The way to avoid this, he says, is to reduce access to appeals. The English did this, he further says, in criminal law by requiring that a miscarriage of justice had to be “substantial” before an appeal against conviction would be allowed. This was a barrier which discouraged appeals and minimised disruption to the established body of precedent. (p 638)
“It is this ability of the English to keep an ideal from too close contact with reality which explains the prestige which they are able to throw around their institutions.” (p 640)
He quotes, at p 639 fn 29, the then hot-off-the-press Goodhart, Essays in Jurisprudence and the Common Law (1931) at 57:
“Perhaps the reason why the English Lawyer is not dissatisfied with the present system is that the 'myriad' precedents do not exist. The English cases to 1865 are reprinted in the English Reports in about 175 volumes. The semi-official Law Reports from 1865 to the present date occupy about 450 volumes. Thus 625 volumes make up a complete working library."
Wonderful times indeed, not that I personally remember them. But how different is it today?
The point is not the number of volumes in which the law can be printed, but the ease with which the law can be ascertained. It hardly matters how many millions of precedents there are, if the relevant ones can be obtained from an electronic database almost instantly. Present problems are around applying acquired legal skills to honing down electronic search results to bring into focus the cases that are truly relevant, and keeping those to a minimum. A concentration on cases that have been cited and discussed in recent decisions should assist this focusing process. So instead of having 625 volumes on the shelves, a practitioner need only have a few leading textbooks and a subscription to an appropriate electronic database.
But Arnold, if he were here today, might still be concerned about what is happening, behind the electronics, to the law itself. Is it becoming uncertain because of confusion arising from what is, in effect, the use of legal principles as if they were rules. Multiplication of exceptions and additions of refinements could be moving the fundamentals in a way which makes them less venerable and worthy of the reverence that has, he would say, attached to the law and the courts. Would it be practical to counter this by restricting arguments about the application of precedent to trial courts, and only allow cases that require discussion of principles to go to the appeal courts?
This points to the real question, whether there is something that needs to be countered. Has the digital revolution saved the law from the Arnold solution?