Good, Common Law

It would make sense that one must test both the "the validity and sufficiency of the 'foreseeability' rule" when analyzing law, as the decisions made in a court of law do not exist in a vacuum. Interpretations are carried out as actions, and those actions may have dire effects on the lives of individuals. It then also makes sense that one must be able to acquire the skill of "distinguishing" cases, as law is a consistent principle that continually builds on itself, and courts do not merely resolve each "particular dispute before them" (7). This is somewhat difficult to do, however, when it is unclear what constitutes a holding of a certain case to another in terms of precedent: "it is an art or a game, rather than a science," for not all cases are well-defined and any "can be adjusted to suit the occasion" (8). So the burden placed on a judge is a great one, for it is not only their responsibility to understand and analyze the case before them, but to see how it might connect with every previous case in existence, and to accurately draw commonalities and distinctions between them even aware of their own inherent bias and fault. This can be considered concerning, but Scalia goes on to clarify that, when skilled at distinction, a common-law lawyer could find ways to grow the realm of common law to fit "new fact situations." In these cases, "common law grew in a particular fashion," with no rule being erased, but others being added: "the game continues" (9). 

However, this system that Scalia describes "of making law by judicial opinion... until [a lawyer] reaches the goal - good law," directly contests with democracy (9). In our democracy, the judge is not the legislator, but Scalia believes that, through the refinement and practice of these aforementioned skills, judges "in fact 'make' the common law" of our nation. This is argued to be unjust, as by doing so justices run riot "beyond the confines of legislative power" (10). Distinguishing is argued to be making new laws, which would make sense. If new facts create new considerations that set new precedents given new situations, then arguing that this act generates new laws is not unreasonable. Scalia argues not against common law, however, but for “the development of the bulk of private law by judges” as a desirable limitation on popular democracy. Legislators, he argues, although elected by the popular vote of the people, are “disqualified by the nature of their duties” to grow, develop, and improve the law, unlike judges who are selected by the people “on account of their special qualifications for the work” (12). It is no surprise that a Supreme Court Justice is arguing for his own validity and qualifications, but this argument drives a wedge between popular democracy and judicial power, suggesting that the system of representation we find to be just is not the system that produces the best law.