The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They experience a sort of intellectual rebirth, the acquisition of a whole new mode of perceiving and thinking. Thereafter, even if they do not yet know much law, they do--as the expression goes--"think like a lawyer."Scalia, A Matter of Interpretation, at 3-4.
The overwhelming majority of the courses taught in that first year, and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law--torts, for example; contracts; property; criminal law.
American lawyers cut their teeth upon the common law. To understand what an effect that must have, you must appreciate that the common law is not really common law, except insofar as judges can be regarded as common....
This is the image of the law--the common law-- to which an aspiring American lawyer is first exposed...He learns the law, not by reading statutes that promulgate it or treatises that summarize it, but rather by studying the judicial opinions that invented it.
More Scalia on common law and distinguishing cases:
What intellectual fun all of this is! It explains why first-year law school is so exhilarating: because it consists of playing common-law judge, which in turn consists of playing king--devising, out of the brilliance of one's own mind, those laws that ought to govern mankind....[A]nother skill imparted in the first year of law school...is the technique of what is called 'distinguishing' cases.
Within such a precedent-bound common law system, it is critical for the lawyer, or the judge, to establish whether the case at hand falls within a principle that has already been decided. Hence the technique--or the art, or the game--of 'distinguishing' earlier cases. It is an art or a game, rather than a science, because what constitutes the 'holding' of an earlier case is not well defined and can be adjusted to suit the occasion....
As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, every newborn American lawyer, first sees when he opens his eyes. His image of the great judge--the Holmes, the Cardozo--is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law. Id at 7-9.
Of course, maybe it is not "good law." Maybe it is bad law. The only thing we know is that it is the rule the judge personally preferred.
But notice, what saves the common law from a system of absolute judicial tyranny is the fact that any common law rule can be modified or extinguished by laws enacted by the state legislature. So, at the end of the day, here the people rule through their duly-elected representatives in the Legislature.
This is why it is not appropriate for judges to treat the Written Constitution as a source of common law judicial lawmaking. Neither Congress nor state legislatures can abolish erroneous Supreme Court decisions interpreting the Constitution. It is therefore completely unlike the common law system of Contracts, Torts, and Property. Courts should seek the original public meaning of the text of the Written Constitution, and should not feel free to impose common law amendments to the Constitution.
