These pages often lament common law’s death. While general concern about common law’s health isn’t misguided, Jim Harper’s idea that common law is terminal (killed by statute) is incorrect. Common law survives robustly, albeit hidden from those who don’t engage in its practice. This seclusion results from an unfortunate divide between lawyers who practice at the trial and state appellate level, dealing with the common law daily, and those practicing in federal appeals and administrative courts, working in think tanks, teaching in universities, or serving on the bench having come from those domains who rarely touch common law topics. The latter’s work is more visible than the former, but is far removed from the legal world most Americans and their lawyers inhabit. Statute dominates the elite’s world while common Law firmly governs the people’s.

Common Law, the “People’s Law”

Why call common law “the People’s Law”? One might assume it’s because common law emerges from social convention codified through judicial precedent. That’s true, but simplistic. Common law always existed hand-in-glove with statutes. At its inception, common law was statutory law by its origins in Henry II’s reforms (viz. writs).

Statutes necessarily ensure common law maintains its just orientation, preventing it from ossifying into irrelevance. Common law needs statutory adjustment because of its limitations, being bound both by precedent and stringent compartmental divides by the theory of relief. Precedent makes the common law hard to change because it makes it backward-looking, providing continuity at the price of innovation. The compartmental nature of the common law means that even when beneficial innovation enters one domain, it can’t spread to others without great effort.

As society changes, however, so must law, but relying on judges to effect change means that it comes slowly and, should a mistake enter, it’s hard to undo. Statutes resolve this, providing a power above judges, and allowing legislatures to adjust law, as legislatures have done since its inception.

Common law courts were therefore never the only game in town. They co-existed, often uncomfortably, with equity courts, which served many functions that administrative courts do today in administering government-led justice based on statutes and principles beyond common law’s reach or those concerning primarily government matters like contracting.

Common law deserves to be called the people’s law because it remains what citizens most invoke when litigating. Common law governs the overwhelming majority of cases today, being the law of auto accidents, business disputes, injuries, and life’s other mishaps. This imbrication into everyday life also means that, far from dead, common law survives with serious vitality that goes unremarked by those who hardly deal with clients and their problems. Indeed, common law’s centrality is such that its passing would collapse our whole system.

Of course, these everyday claims—the law of billboard and TV-ads—are far from glamorous. Consequently, they reside out of sight and mind for most legal theoreticians. This lacuna is unfortunate because legal liberty is guarded not by the exception, but by the rule. Fortunately, common law’s role in protecting liberty still exists robustly, though it lacks the luminaries that once expounded its principles, risking stagnation.

Why this oversight? The main answer is contempt for the state courts where it’s practiced. Little advanced, public attention goes to the ALI (though they have a common law answer to Harper’s problem) or other institutions maintaining and advancing our common law, despite the busy work of the exceptional legal elite manning these institutions (which lean progressively left, raising the question where conservative pro-common law action best rests). The elites instead generally prefer discussing “serious” areas of law or lamenting the death of something they don’t engage in themselves.

When writers lament common law’s loss of liveliness, my mind goes to humble devices well-known to practitioners but largely unknown to elite scholars. One example is Florida’s Coblentz Agreement. This is part of insurance law (usually heavily statutory) where an insured who’s being sued by an injured party, but has his claim denied by his insurer, enters into an agreement where he admits fault, agrees to a reasonable sum of damages, then assigns his claim to the injured party who sues the insurance company directly, with the Court determining coverage and awarding damages if appropriate. A Coblentz agreement is a living procedure governed by complex and elaborate law developed independent of statutes.

In another, Johnson v. Davis, Florida courts created a common Law claim revising traditional principles of real estate purchases from a caveat emptor standard to disclosure. Florida later developed accompanying statutory law to clarify and specify the duties.

These are but two examples, taken off the top of my head, in addition to many others.

Common and Statutory Law

Common law’s dirge mainly laments the conquest of statute, but their interrelation is key to singing the tune true.

Common law domains (tort, contract, slander, etc.) emerge from judicial decisions based on prior rules and principles. While judges created some claims, such as Unjust Enrichment or Johnson, from earlier ones, most developed from a complicated interpretive history of parliamentary and royal decree.

In other words, from statutory law.

Far from dichotomous, common and statutory law, share a symbiotic relationship. Statute has always served as the kernel from and around which common law grows.

As Blackstone explains (Bonham’s Case aside), statute dominates common law. Why? Sovereignty. Parliament has sovereign legislative power. Courts don’t. Therefore, court rulings are subject to parliamentary decree. Giving courts too much power, even under common law, pulls them away from this principle.

In this model, courts and legislature work together, with legislatures providing the guidelines through law-design and courts the details through law-implementation, which combined, later becomes the common law.

Moreover, before the development of modern procedure (though this still obtains with less rigor) courts were tightly restricted to ruling only on properly pled issues. These pleadings limited how and which claims could be raised. Courts only delivered rulings appropriate to claims-at-hand. If a litigant raised a tort, the court couldn’t rule using a contract theory. East was East and West was West and never the twain should meet.

Hence statutes. Statutes serve as Kipling’s strong man bridging the divide. Statutes bridge the gaps between common law areas, allowing principles to co-mingle. They also circumscribe precedent when it goes awry. Statutes therefore harmonize areas of common law that might become so divergent as to create injustice and correct mistakes that higher courts may be unwilling and lower courts unable to do.

If one looks at the statutes most states have governing common law, statutory law generally operates on common law thusly. Other than the generic adoption of common law found at most codes’ head, statutory law doesn’t adopt or outline the rules governing contracts or torts (as opposed to civil law codes). Instead, when one examines statutes governing common law principles, these usually modify court-created standards, e.g. creating a comparative negligence standard where other forms existed. These modifications don’t hinder common law’s dynamism but canalize it. Its vigor remains in full force.

Even without statutory augmentation, common law already protects information far better than Harper assumes. We can see this if we look at where common law works best: practical social experience, which lies, along with statute and precedent, at common law’s heart.

The Information Age

Harper’s suggestion for a statuteless, information common law based purely in property law won’t work. The explanation highlights many aspects of common law and its relation to statute.

Harper suggests a property framework based on trespass or conversion. These theories fail thanks to information’s nature. Because information isn’t tangible, property law can’t cover it without serious perversions to that theory itself. The danger of such conflation results from common law being a law of right and remedy. The subject’s underlying nature determines right and remedy, thereby constituting law.

Chattels are tangible, meaning they’re subject to physical limitations as rivalrous private goods. Trespass, concerned with damage; and conversion, concerned with destruction or alienation, are tightly linked to this nature. Information doesn’t and can’t share this nature, not being subject to damage or destruction/alienation (at least not in the same way).

To clarify, trespass and conversion take their shape (i.e. confer the rights they do) because of tangible property’s nature. One can sue in trespass or conversion based on the impacts a tortfeasor makes when interfering with possession; that’s to say, one can only claim for damaged or destroyed property if the property can be damaged or destroyed. If its nature isn’t subject to those actions, then no remedies can be obtained under either theory’s rights because the ability to be so affected is implicit in those very rights (i.e., one has a right to be paid if property is damaged).

Real-property law, an alternative theory for Harper, highlights the nexus between a good’s nature and its law. While the laws of real-property and chattels developed simultaneously (a point on which Harper is mistaken, as the fifth-century Salic Code demonstrates), real-property’s nature requires special protections. One can’t, for example, assert ownership of real property by possession. And many people can exercise ownership simultaneously (reducing but not eliminating rivalry). The law historically dealt with this problem through a robust statutory regime, including the statute of frauds (adopted by Parliament in 1677), encumbrances, deeds, etc., which became incorporated into common law and by separating trespass on land from chattels, highlighting how the difference in an item’s nature changes its underlying law.

If one were to redefine these torts to cover something intangible, one wouldn’t just extend the tort, but one would redefine the rights and remedies it conveys and therefore what the tort itself is, undermining the original by producing a different theory.

The above indicates how analogical reasoning works in common law. One doesn’t analogize from the law, as Harper does by trying to see which law seems to fit information best, but from the thing which the law protects because the thing’s nature creates the rights dictating remedy, the combination of which realizes law. Thus the thing is the analogical principle, not the law.

If we were to build a common law of information from existing law, we must look not to which law makes the most sense, but to which thing is most like information.

Information differs strongly from tangible property. Therefore to find an analogue, one must look to the law of intangible goods. Common law includes intangible good property rights (though the best analog to information is IP law, which is entirely statutory due to its inclusion in the Constitution), including riparian rights, or the right to draw water from bodies that flow across multiple properties. These aren’t subject to conversion or trespass claims because they aren’t tangible or rivalrous (being public/club goods). Because of these difficulties (but like real-property), their history is a mix of judicial precedent and statute. Pure common law, even at its nineteenth-century height, was never enough.

Even without statutory augmentation, common law already protects information far better than Harper assumes. We can see this if we look at where common law works best: practical social experience, which lies, along with statute and precedent, at common law’s heart.

As the T-Mobile example indicates, most information-related interactions occur through contract, either EULA’s or service contracts. Because of the mutual-exclusivity of common law domains, where a contract exists, other common law regimes cannot apply. Consequently, it wouldn’t matter how robust an information law might be, Carpenter would’ve gained no protection under it because he and T-Mobile entered into a contract.

Even absent this relationship, current common law principles do apply to information-relationships, specifically negligence-law. This tort only requires duty, breach, causation, and damages. If there’s a relationship between an information-customer and a servicer, absent a contract, and that servicer fails to safeguard information and harm arises, negligence obtains.

One might argue negligence is a dubious proposition. One has to prove its elements, which can be hard for information.

True, but that’s a flaw with all common law actions. Common law’s self-help regime requires individuals to indicate the breach/damages and the negligent party, hire an attorney and prosecute their case. In our information-world, this is extremely difficult. That’s why a criminal statute might outperform any common law system, even one specifically focused on information, because it shifts prosecution to a better-resourced party: the state.

Even so, one might prefer a negligence action to a specific information-related doctrine because negligence resolves many practical difficulties. One needn’t find the damaging party (subject to an information-based tort), which could reside on the dark web in a country far away. Instead, one need only locate the negligent party, likely an easy-to-serve, deep-pocketed corporation.

Common Law’s Future

Even assuming that a new common law of information is desirable, how could we build it?

Considering privacy, the last major tort created, highlights the difficulties of a common-law-alone approach. Warren and Brandeis, both practicing attorneys, built privacy largely through a law review article. In this article, they argued privacy’s necessity not by analogizing it to existing common law domains but by emphasizing its difference. Novelty was necessary because these authors understood common law’s conservative nature, i.e., it’s loath to create new when old will do, but to do justice, will build anew when necessary.

The problem in creating new law is its unknown rights and remedies. There are two ways to liquidate these. Privacy pursued both. One is having excellent common law-trained judges and lawyers resolve these problems in court. Unfortunately, we don’t have judges and lawyers with enough influence and creativity who know the common law well enough to accomplish this. Gorsuch’s profound, basic mistake (one first-year law students hopefully don’t make on their finals) assuming that conversion applies to information shows just how ignorant of common law our legal elites are. Harper is certainly correct here.

The other solution is having a legislature pass statutes establishing a new common law domain by outlining the two basic components of common law claims: right and remedy. This law, far from usurping the common law, provides the trellis to grow upon.

The problem today is that such a law would require what we often lack: the sharpest minds to serve as both judges and legislators, coming from deep practice rooted in the common law tradition, proficiency in which grows not by theoretical study, but by practical litigation in court. This means practice in the least prestigious and most neglected parts of the court system today: state courts. Given the preference of legal talent to migrate to domains as far from these courts as possible, this evolution seems unlikely.

If this is so, it isn’t the death of the common law that’s to blame, but the elites on both sides of the aisle abandoning it and legal practice in general for Ivory Tower law-in-theory. The good news is that the remedy lies in these same hands, should they ever choose to return.