Tuesday, January 07, 2014

Blackstone and you

I read with interest Judge Kelsey's article in the current VBA Journal about the current relevance of the common law of England, in which he addresses and contradicts various criticisms of the application of the English common law as precedent in Virginia, and cites a list of recent cases in which the common law was prominent in the bases for decision.

The list of recent cases included Wyatt v. McDermott and Jenkins v. Mehra, among others. I recall reading these when they came out and thinking how strange that they turned to such a significant degree on the common law when they seemed to be in areas of the law where the legislature has acted in considerable detail. In Wyatt, the Supreme Court concluded that there was a common law writ for interference with the relationship between parent and child, or close enough, while recognizing that there are many differences in the law as it is today. To me, the many differences swallow up the similarities, and the incorporation of medieval concepts of the status of children is and was unwarranted, and the dissenters seemed to have the better view. In Jenkins, the Court found that the legislature had not spoken clearly enough to overrule the common law on a point of appellate procedure, of all things. The Constitution of Virginia gives the legislature the exclusive power to define appellate jurisdiction, there is no appellate jurisdiction except by way of legislative enactment, and so it seems a rare thing that the legislature is limited by the common law.

In Jenkins and in Wyatt, the Court referenced opinions from other states in explaining the common law rule. For a long time, I thought the Virginia Supreme Court was particular hostile to authority from other states, or even more so from the federal courts. I often suspected that part of the reason for this was the view that there is a fish in the sea for every taste, when searching through case law - there are conflicting precedents within and among the several states. The federal courts often get it wrong in guessing what is the law of Virginia, much less what the Virginia Supreme Court will think was the law of England in 1607. Certain justices I can picture in my mind's eyes seemed to relish the idea that only way to get a case right was to look to the opinions of the Virginia Supreme Court.

At least, with the internet, it is surely easier now than it was in 1800 to research the common law. You can read Blackstone's Commentaries on your mobile device for free. There might even be an app for that.

For those who find these topics interesting, there is a session titled "Democracy of the Dead: The Relevance of Legal History in Modern Litigation” on the agenda for the winter meeting of The Virginia Bar Association in Williamsburg later this month.

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