Searching for judge-made law

September 21, 2012

Thomson Reuters recently released Reading Law: The Interpretation of Legal Texts by Bryan Garner and Antonin Scalia.  Richard Posner’s controversial review in the New Republic has spurred an ongoing, heated debate.  Above the Law conveniently collects the conversation here.

Questions regarding the courts construction of legal (and other) texts are very, very common here in the Reference Attorney department.  Very frequently, we field calls wondering whether a court has ever defined a particular term or phrase.  Sometimes these requests make sense and bear fruit.  For example, in insurance cases, try the following advanced search in any jurisdiction:

wp(“arising out of”)

As you might be aware, the wp-search (words and phrases) is designed simply to find cases where a court has defined a given term.

Nine times out of ten, however, we are left with reviewing the general rules of construction especially in the contract/commercial context (e.g. Is there an ambiguity?  Is there any other reason the plain meaning of the term does not apply? Do specific terms control over general terms?  Do other sections inform the meaning of related sections?).  After all, what are the chances your term has been litigated?  Even if it has, would it be relevant?  See, for example:


KeyNumbers are plentiful and helpful.  There are KeyNumbers regarding the construction and operation of everything from insurance policies, to statutes, to court orders, to patent claims… too many to list here.  Often times, I’ll simply begin with an advanced search that looks like this:

to(construction and operation) /p [your terms here]

or, try the related latin term (to the extent, you might remember them)


No doubt,  Reading Law’s 57 principles proved excellent search terms to find these KeyNumbers. The breadth of available case law means this research is generally easy to conduct once you know a few tricks.

“Socially Desirable” Results

It’s much, much more difficult to discern from these cases which might represent a textualist approach and those which might represent a non-textualist (or, purposivist) approach. Maybe this is so because the two approaches are not necessarily entirely divergent. This is professor John Manning’s suggestion in a well-cited, 2005 Columbia Law Review article:

Contrary to popular perception, prevailing methods of purposivism rely on many of the methods that textualists hold dear. In determining what purpose to attribute to a statute, purposivists pay close attention to text, structure, sources of technical or specialized meaning, and maxims of construction (both semantic and substantive). In addition, the most influential version of purposivism also purports to filter these sources through an objective construct that does not seek actual legislative intent, but rather invokes an idealized, hypothetical legislator as the benchmark for understanding what legislation means.

What Divides Textualists from Purposivists? 106 Colum. L. Rev. 70, 85-86

The term ‘purposivist’ appears 10 times in all state and federal cases. Most of these cases are citations to Professor Manning’s article. A plain language search on WestlawNext for judge-made law delivers interesting results, however. Our first result is Matter of Oswego Barge Corp., 664 F.2d 327 (C.A.N.Y., 1981) which includes the KeyNumber for judicial encroachment on the legislature:


This should prove to be a good start, though certainly, it’s the application of various doctrine which ultimately determines which approach has been taken.

Finally, remembering that the doctrine of copyright fair use was essentially judge-made law before it’s incorporation into the 1976 Act, I reviewed some of the legislative history regarding fair-use.

It is interesting to note … that early on in the two decades of negotiations that led to the Act, a variety of interested parties urged that the Act not reference fair use at all, or if it did, that its reference take the form of a “bare bones” one-sentence limitation. Their concern was that statutory recognition of fair use would “freeze” or otherwise unpredictably alter the judge-made doctrine.31

An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005
156 U. Pa. L. Rev. 549, 558-59
For the relevant legislative history, try the Arnold and Porter legislative history database on Westlaw:
Database: COPYREV76-LH
Query: freez! /s fair-use
Results: 12

I’d be very interested to know what folks think about this Congressional deference to the judicial branch.