It doesn't try to identify legal systems that actually do this in practice. This Essay claims only that it's plausible for a legal system to have its judges find law. And judicial decisions can have many different kinds of legal force - as law of the circuit, law of the case, and so on - without altering the underlying law on which they're based. But uncertain cases force judges to make "decisions," not to make "law." Different societies can give different roles to precedent (and to judges). The second, "realist" criticism is that this law leaves too many questions open: when judges can't find the law, they have to make it instead. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English - with a certain kind of reliability, but with no power to revise at will. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made. This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed - as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture.
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