From: Chaim Saiman [mailto:Saiman@law.villanova.edu]
Sent: Friday, November 28, 2008 12:21 PM
To: Donald Macdonald; obligations@uwo.ca
Subject: RE: Was denning a "great judge?"

Sorry, it's late on a Friday.  "CJ"?  "CW"?

>>> Chaim Saiman <Saiman@law.villanova.edu> 28/11/2008 17:13 >>>

A couple of quick thoughts on this interesting conversation

1.       Lets recall that this whole conversation started out with a question of consideration, thereby seeming to prove the old adage that all of contract theory can be traced back to debates over consideration.  As an aside, in the US the prevailing wisdom is that we teach consideration (usually in the first few weeks of law school) not to learn the doctrines (which are somewhat obsolete) but to show the students why we just can “teach the blackletter rules” and how courts manipulate legal doctrine to reach different results. In sum, we take the traditionally formal doctrine and use it to introduce the students to legal realism.

2.       As to the Denning debate. I havent read all that many Denning opinions, but from what I recall most of them tend to try and liberalize the common law from the weight of its more formal and antiquated rules, (though perhaps doing so in a more direct and frank manner than the standard English judge).  To me, Denning reads like US judges Traynor and Cardozo, (but more restrained than Brennan and Marshall).  In short the Denning ops read like many “seminal” US common law ops from 1930-1980.

3.       Which leads me to my question to the CJ’ers. My sense is that Cardozo is usually held in fairly high esteem by the CW bench and academics, and would be called “a great judge” But in what way is Denning different than Cardozo? Perhaps Denning was a bit more flamboyant, but are there real substantive differences?, What distinguishes Cardozo – the model judge who adapted the rules to the times ---from Denning—the judge who was so caught up by the times as to forget the rules?

4.       As to the comparisons between CJ and L/E.  While in the late 70’s and early 80’s Posner et.al attempted to show that the common law was always groping towards efficiency, -- that LE was immanent in the law---.this mode of argument gave way pretty quickly. Today, most L/E scholarship is far more empirical in the “this is what is going on out there mode” with the explicit or implicit argument that the law should change to reflect that reality.   But there are more fundamental differences between CJ and LE, as already hinted to by Richard Wright.   Like most theories, CJ seems to envision an iterative process whereby the “law” creates the CJ theory and in turn the theory influences the law.  Moreover the definition of “law” is somewhat fluid, sometimes meaning “the precedent as written by the judge” and sometimes “ the holding explained in terms that the judicial author never used and might not even understand.  I don’t think CJ is unique in this respect, basically all interpretive theories wok this way.

5.       This seems to me one of the major differences between L/E and CJ. LE scholars recognized this and thus don’t really care much about precedent—contracts mavens will certainly be familiar with Easterbrook’s opinions in ProCD and Hill v. Gateway, which basically make declarative statements and cite to very few precedents.  I think the main difference between L/E scholars and more traditional lawyers working under a CJ theory, is that L/Eers are quite happy to make most of their arguments from extracanonical (i.e  not precedent or statute) sources, while CJers attempt to read canonical sources through the lens of the theory.

6.       Finally, I’d just like to comment that the debate between Jayson and Steve parallels debates that have gone on between theologians for centuries.  One camp (the conservatives) invariably starts out with a narrowly defined canon and maintains narrow interpretive conventions. This camp will then critique decisions as “inauthentic” and non in accord with the tradition.  The counterposition has a slightly broader understanding of the canon, and (more importantly) different interpretive conventions (e.g what judges do instead of what they say), and claims that an accurate reading of the tradition accords with the more liberal view.   This is not altogether surprising, since both religious and legal traditions must attempts to square doctrinal development with fidelity to history, text and tradition.   For a recent example from the Catholic sphere, see book by US court of appeals Judge and Catholic scholar John T. Noonan, “A Church that Can and Cannot Change”, and the reaction to it by Avery Cardinal Dulles, http://www.firstthings.com/article.php3?id_article=234.  For those interested, I can provide examples from Judaism from the 1, 2, 4, 6, 12, 14, 16 ,17, 18, 19 ,20, and  21^st centuries.