Worlds in a Grain of Sand

Consider footnote 20 from 19 Wright & Miller et al, Federal Practice and Procedure s.4506 (1996):

Klaxon case

1941, 61 S.ct. 1020, 313 U.S. 487, 85 L.Ed. 1477, noted 1941, 41 Col.L.Rev. 141, 40 Mich.L.Rev. 126, 15 So.Cal.L.Rev. 95, 16 Tul.L.Rve. 141, 8 U.Pitts.L.Rev. 60, 28 Va.L.Rev. 279, 1942, 20 Tex.L.Rev. 375.

There are worlds contained in this grain of sand. Klaxon, of course, is the case where the Supreme Court decided that a federal court sitting in diversity case should apply the choice of law rules of the state in which it sits in order to determine what state's law it should apply. A technical issue to be sure, but one that in itself represents the triumph of a particular view of law -- positivism -- as well as a particular view of federalism and the breadth of certain constitutional provisions, such as the Full Faith and Credit Clause. Footnote 20 itself is interesting for what it says about the development of American legal thought. First, it is striking that it collects the law review articles that "noted" the case.

These were brief pieces written by students, not even rising to the level of formal Notes, which are in effect mini-law review articles. (For example, here is a copy of my own law review note.) Today, case comments are the intellectual bottom feeders of the law review food chain. First, they are written by students. Second, they are written about doctrine. Third, they focus on a single case. At the top of the food chain -- of course -- are articles written by professors, which focus on theory, and draw extensively -- perhaps exclusively -- from non-legal sources. The gap between the top and the bottom of the law review pecking order reflects the broader and much lamented gap between the profession of law and the profession of legal scholarship. The fact that a treatise would stoop to the citation of case comments is evidence of this gap.

Yet the citation of comments also invokes a world of practice that no longer exists. The case comment was originally envisioned as a tool for the practicing lawyer. It would keep him updated on developments in the law, and provide a practically useful synthesis of cases. Yet this assumed a world in which the development of case law was of primary importance, and in which that case law developed at a rate that made it possible to identify leading cases. Neither of these conditions still hold. Today lawyers practice in a world where case law is frequently of secondary importance to legislation, regulations, and even opinion letters by regulatory enforcers. All of these things are produced in a volume that makes the notion of keeping abreast of developments in the law via general purpose law reviews laughable. Today, things like BNA reporters have replaced law reviews for those few attorneys who can escape from the particularities of practice to keep informed about "general" developments in their field.

Footnote 20's invocation of a lost legal world also says something about life of legal literature. Wright and Miller is a staple of my life. In litigation practice, I consult it more often than any other treatise. Footnote 20 points out its odd layering. Passages in some sections clearly trace back to the first edition of the treatise, while others are as recent as the newest pocket part. In this sense, Wright and Miller is like the ship of the Argonauts, rebuilt one plank at a time while on a long voyage. In this sense it is like the law itself, which is no doubt a large part of what marks it off as a masterful treatise. The law always involves the recovery of lost worlds, but never for their own sake. Rather, lawyers grab at the bits of the past that continue to intrude upon the present to govern disputes of today.

It is all there in the string citations of footnote 20.

Comments

[gc]

What, no love for Moore's Federal Practice?

[fed cts geek]

Moore's Federal Practice is for weenies. Real lawyers read Wright and Miller