Common Law and Institutional Design

Beth Noveck posts some interesting reflections on reading Fred Schauer’s recent piece, The Failure of the Common Law (36 Ariz. St. L.J. 765 (2004)). Schauer argues, descriptively, that the common law really isn’t so superior after all, since it relies on faith in a certain set of customary social patterns, and the growing particularization of law shows that the faith is fading. In light of Schauer, she wonders, what forms will legal institutions take? Look not to the common law in particular, or to institutional design in general, but to novel forms of lawmaking: open standards for software and open access principles for content. Debates between open and closed content will pull lawmaking away from older rules/standards dichotomies and into new, blended institutional designs that accommodate new customs, built on open and closed interests.

I wonder whether this line of thinking casts “the law” too narrowly as “the decisionmaker(s).”

I’ve always understood the common law not only as a particular form of rulemaking output, but also as a method of dispute resolution that validated certain kinds of knowledge: highly particularized, contextual “truth” gathered and presented by the parties themselves. Judges and juries don’t inquire. They simply decide. The shift to the more particularized rulemaking that Fred Schauer observes in his piece — a shift that is unmistakable — is, among other things, a rejection of that method.

So what? When Beth draws a connection between Schauer’s argument and contemporary debates about openness and closure in technology and access debates, maybe the connection needs to made not only at the rulemaking level, but also at what might be called the epistemological level. Open standards for access and software validate the knowledge gathered and contributed by individual members of a relevant community; closed, proprietary standards reject that knowledge. Things like open source licensing and Creative Commons licensing are new legal institutions that blend local knowledge with central control — a kind of convergence in institutional design, but perhaps not convergence grounded in emerging custom.