A Theory of Local Common Law

Abstract

The common law in the United States is conventionally understood as a primarily state-level phenomenon, with slivers of federal common law. Yet local courts — city and county courts as well as lower state courts — articulate common law doctrine and procedural norms that vary at the sub-state level, often markedly. Local courts provide the forum to which most Americans turn to resolve their conflicts, yet scholarship on local courts, and local law, remains remarkably thin. This Article begins to fill this gap, showing for the first time that local courts are actively engaged in constructing “local common law.” This activity, in fact, fits well within the courts’ expertise in creating state common law, which itself demonstrates localist tendencies. The local judicial independence that local common law represents is normatively justifiable on many grounds — it is efficient, respects local norms, and increases flexibility — but it also raises significant concerns. Local common law correlates with disparate treatment of similarly situated individuals on the basis of where they live or their financial means. Local common law also provides inadequate notice, given the thousands of local jurisdictions and the informational burdens of identifying local substantive and procedural common law. And local common law threatens to infringe on state interests. As the burgeoning scholarship on local governance has shown, local autonomy should be heralded — and also should inspire caution. This Article develops a theory of local common law, demonstrating the conditions under which this localist jurisprudence is most likely to develop and highlighting the phenomenon’s normative and practical consequences. This framework not only sheds light on an intriguing and little-studied aspect of local legal practice but also can be extended to a host of other scales at which one might find “common law.”