Common Law not so Common Anymore

j0305818If you haven’t already seen it, please visit e-Discovery Team’s site and read my colleague Ralph Losey’s outstanding piece on Judge Shira Scheindlin.

I’ve been having a theoretical discussion with some very bright legal minds about the critical influence of judges on the future of e-discovery.  My theory is that e-discovery is causing the resurgence of common law over statutory law.

Our system of jurisprudence is a series of building blocks.  Originally, the principal block was common law (also known as ‘judge-made’ law).  One could trace the progression as it passed through the hands of various courts over the years as ‘modern’ principles and sensibilities of the particular time were applied.

Later, statutory law moved to the forefront and the judges’ role changed to one more of interpretation and application than creation.

What I see happening now is judges taking a very active role in not only interpreting and applying e-discovery rules, but channeling Chief Justice Marshall from Marbury v. Madison, as we used to study in Constitutional Law class:

“It is emphatically the province and duty of the judicial department to say
what the law is.”

Eh?  It’s a theory…