Is a book review too far advanced in time? No, according to a second examination of renowned Yale Law professor and Second Circuit Judge Guido Calabresi’s book A Common Law for the Age of Statutes.
The book, which was published in 1982, was inspired by his 1977 Harvard Law School Oliver Wendell Holmes Lectures. It offers at least one path out of the dangerous place our legal system has found itself in over the last century or so, if it isn’t the panacea for the problems facing the Anglo-American legal tradition. Perhaps this reviewer might encourage wider discussion of the issues with the common law and the need for solutions through Calabresi—more about him here.
During the Carpenter v. United States oral argument in 2017, Justice Neil Gorsuch questioned the attorneys over the ownership status of data that T-Mobile collected and stored. Without a warrant, government agents obtained “cell site location information” from the telecom company, which they used to demonstrate that Mr. Carpenter was present in the areas where crimes were committed at the times they were committed. Carpenter took issue with the information being searched that revealed his whereabouts for extended periods of time and the warrantless seizure.
Whether Carpenter had a property right in this data would determine whether Gorsuch would uphold Carpenter’s Fourth Amendment claim. He ordered Carpenter’s attorney to “say a thief broke into T-Mobile, stole this information, and tried to make economic value out of it.” “For example, would your client be able to make a conversion claim under state law? Have you looked into it at all?
Gorsuch’s line of inquiry seems to be directed at a textual approach to Fourth Amendment interpretation, as the Supreme Court haltingly steps away from the vacuous “reasonable expectation of privacy” standard. The amendment’s wording proposes posing the following queries: was there a seizure or search carried out; were people, homes, documents, or belongings taken into custody or examined; and, if yes, was it justified? Even in high-tech circumstances, courts could apply this more jurisprudential method to implement the Fourth Amendment.
The possessive pronoun “their” modifies the list of items that belong to persons and are protected under the Fourth Amendment. Carpenter would therefore have a claim if Carpenter’s location data were his property. He wouldn’t if the info wasn’t his.
The Statute Age
So how do information property rights operate? In the event of data theft, is there a conversion action?
The era of legislation is upon us. In my opinion as a debatably competent legal historian, the main dangers to information control against illegal taking have not been handled by common law but rather by legislation.
Think about confidential company data. Commentators stated in the Louisiana Law Review in 1972 that “the law has evolved certain protections for a businessman’s secret information which allow him to conduct his business free from reprehensible business tactics, based partially on tort concepts, partially on property concepts, substantially on contract concepts, and vastly on equitable concepts.” The Uniform Trade Secrets Act (USTA), which is currently the main state regulation addressing wrongful employee exfiltration of information, commonly known as “stealing,” surpassed that evolutionary process. The USTA was adopted by the National Conference of Commissioners on Uniform State Laws in 1979 following a 1968 start to the process.
The more recent challenge to information control is hackers. Statutes like the federal Computer Fraud and Abuse Act have superseded common law remedies to novel online crimes like trespass to chattels that courts and pundits considered in the early days of the Internet.
Of course, personal information is protected, and those protections are statutory. One who commits “identity theft” is in violation of the US Code. This guards against the use of private information in financial crimes. However, it is evident that those who wish to preserve their security and privacy against more inventive dangers do not benefit from the more comprehensive and adaptable property rights protections.
These kinds of statutory safeguards provide floating walkways, jetties, and bridges over risky areas. What Calabresi referred to as the legal “topography” in his work is not replicated by them.
In the absence of these statutes, a recognition of property rights in information (albeit not all of it) would have become part of the legal geography by now. It is common practice to hoard, trade, sell, divide, and divide information for profit or pleasure. According to Tony Honoré, these are the sticks in the bundle that make up property rights, and law students are usually taught this. When Carpenter signed a service agreement with T-Mobile, the agreement granted the corporation possession and a variety of use rights, but Carpenter kept the crucial property right to keep his data private and prevent others from accessing it.
Information aligns with traditional conceptions of property, such Locke’s blending of labor, with only slight modifications in emphasis. (Information that individuals have control over is owned. The remainder isn’t.) “Toward a Theory of Property Rights” by Harold Demsetz is also a useful resource for information. In order to improve information transactors’ wealth and reduce the expenses they place on others, property rights internalize both positive and negative externalities. In a work-in-progress, I contend that information is being treated with property rights in the same way that actual property was treated before written history, when tribes transitioned from hunting and gathering to agriculture and claimed property rights over the land they farmed. At the end of feudalism, and in an effort to accelerate its termination, movable property rights were protected by merchant guilds threatening to withhold (taxable) trade from kleptocratic rulers.
However, common law development ends when statute law offers the necessary protections. Since the Uniform Trade Secrets Act establishes the basis for litigation, why would a plaintiff contend that a novel type of common law property has been converted? Why would prosecutors claim that common law property has been stolen or embezzled while collecting and exploiting personal financial information in fraud violates a federal statute?
Information is viewed by courts as property. The term “stolen information” has been used by the Supreme Court, all federal appellate courts, and numerous state supreme courts to characterize information that is the subject of property crimes in 99 different cases. (Of course, the phrase only gives a small sample of cases when information is treated as property by courts.) However, few courts have the chance to decide that information is common law property when statutory compliance is in question. The statute law-created jetties and bridges impede further development of walkable legal terrain.
Calabresi’s Law of Common
Calabresi’s allegation is not the same as mine. His main goal in writing A Common Law for the Age of Statutes was to bemoan and start questioning instances in which legislatures, in their spasmodic, episodic manner, strayed from the centuries-old legal landscape. They tear apart the “seamless web” of the law, to use another metaphor. Furthermore, he provides strong arguments in favor of what currently appears to be a bold suggestion.
Legislative acts originate from the fleeting agreement of a majority of elected authorities on a specific regulation. The next instant, that majority’s power starts to wane. The moral authority of the regulation wanes over time due to significant doubts about its ability to be reissued.
All things considered, common law courts operate in an episodic fashion. Over time, often a very long time, they accumulate or diminish legal rules, which lends them a stronger moral authority or legitimacy than statutes. You could also refer to it as inductive study or tradition. It appears that developing common law is a more effective learning method than attending hearings and markups attended by smart people from state and federal capitols in Washington, D.C. Common law rule development selection is restricted to areas with actual disputes, whereas statute writers choose their topics based on factors including public interest, lobbying, and public attention. Judges virtually seldom consider being on the opposite side of the “revolving door,” where many politicians, regulators, and their numerous staff wind up, especially when they are unelected and tenured.
Given that common law has a greater foundation of moral authority, why have we determined that legislation should have the last say on what constitutes law? Alternatively, Calabresi did not.
Asserting an ideological alliance with James Landis, Justice Harlan Fiske Stone, Chief Justice Roger Traynor of the California Supreme Court, and other figures (enumerated in footnote 15 of chapter VIII), Calabresi contends that legislative law that creates an uneven legal landscape should be subject to court derogation. There will still be places where courts can enact laws, in his opinion, despite the fact that “statutorification” won’t disappear and common law courts will once again take precedence. This will occur occasionally in places that are still subject to common law and occasionally in areas that are governed by legislation (page 163). In a modest way, Calabresi offers a bold suggestion: overthrowing legislatures whose laws prove unworkable.
Statutory interpretation has received a lot of attention from the conservative and libertarian legal organizations, who have mainly prevailed because of Justice Antonin Scalia’s moral and intellectual strength. The benefits of “original public meaning” textualism are yet underappreciated. The only way to avoid usurping the democratic process is to give expression to the genuine agreement of those temporal parliamentary majorities, stated in the language that they employed!
However, perhaps we ought to usurp the democratic system. Reality and the popular conception of democracy diverge. There are numerous points of failure to consider. The romance has been taken away by public choice economics to reveal that elected politicians prioritize gaining power over the interests of the people. A national system that is too big and complicated for the general public to manage has been produced by the breakdown of checks on federal power and the expansion of the administrative state. Particularly at the federal level in the United States, the daily practice of politics appears to be continuously plunging gaudy new lows of divisiveness and immorality. The individuals “we” elect and the things they do with the power we grant them seem to refute the benefits of democracy. We cannot depend just on politics.
Holden T. Tanner contends in “How to Recover Conservative Judging” at Law & Liberty that the textual response to “living constitutionalism” has not gone far enough to bring about the restoration of the previous state of affairs. “The common law method’s traditionalist and moral reasoning has to be strengthened and revitalized. Better originalism alone won’t cut it. A comprehensive conservative jurisprudence is required.
I’m concerned that the argument seeks to impose someone else’s agenda on the law, and that it might incorporate more ideas than the common law can support. However, a return to the common law method of bottom-up rule-making will greatly enhance our valued legal legacy. We have lost legal progress and privacy in this era of statutes, as information cannot be characterized by common law and used in Fourth Amendment cases. When people navigate our information worlds, they put themselves at much too much risk. We are vulnerable to both predatory feudal rulers and highwaymen, much as the early traders who were not shielded by property rights in movables. We would all benefit from having clear rights to own and sell information, yet no law explicitly states that these rights exist. Courts are no longer headed toward that finding because of the statutes that are in place.
In 1982, Judge Calabresi was correct to bemoan the “orgy of statute making” that we have come to. He suggests reclaiming the judiciary’s power to define the law since he observes statutes tearing apart the fabric of the law. My issue is distinct. I see new issues arising and a common law that is stunted unable to assist in resolving them. Judge Calabresi’s idea to amend statutes that are erroneous isn’t one that I think should be implemented. How can we create a framework that keeps the common law evolving?