Tuesday, May 03, 2005

Comparative Law Prep

Thoughts in preparation for Thursday exam...

Is federalization of the law harmful or beneficial?

The question could be one of fact versus principle. The Civil Law is said (by Prof Wolff, just turned 99!) to work from principles to fact, the Common Law the reverse. To the extent facts predominate in determining justice (in courts or in policy), the closer to the specific circumstances one would want to be, justifying local law and legislatures. To the extent principles carry greater weight, the further from the blurring circumstances one would want to be, justifying universal law and government.

Our brilliant Constitution satisfies both theories, combined in creative tension. Erie was a particularly good decision for the very reason that the Common Law is best when local and codified law best when developed by the "aristocracy" of the mind from the center.

Are Congress and the Federal Judiciary so wise? It is reasonable to posit that the best tend to rise, so Senators will be smarter than Congressmen, who will be in turn be smarter than state senators, etc. The same is thought to be the case for the federal bench versus the state bench.

Long Live Federalism!



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