45
Accessibility and the common law
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I have not said anything in this paper, already becoming unacceptably long,
regarding accessibility of the common law, except to the extent that both common
law and statute intersect. One advantage the judge has over the drafter of a statute
is that the judge has a freer hand. He or she has a wider range of options for
communicating meaning. The judge can express a proposition in different ways,
define issues, engage in discussion and analysis, employ more context, and generally
make a judgment more interesting reading. A long judgment often results.
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The notion that judges declare the law has long since been discredited. A judgment
of a court is, however, an authoritative statement of the law, whether the judgment
involves the construction of a statute, contract, lease, will, or other document, or
determines the liability of one party to another, or decides on the lawfulness or
otherwise of executive action. Frequently, a court has to decide complex factual
issues before determining the relevant law and applying it. Judgments involve
careful evaluation of competing arguments on fact and law. A judgment is likely to
contain a mix of factual narrative, analysis of the arguments put forward by counsel,
an exposition of the law, and a decision on the issues before the court.
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However, a reader cannot usually go to a judgment and quickly find out what the
law is on the matter with which the judgment deals. He or she will have to read it
or possibly read several judgments on the same matter. Even a dissenting judgment
may agree on the law as it is stated in the other judgments, but not on its application
to the particular facts. This presents considerable challenges to people who have not
been trained, as lawyers have, in how to read the judgments of the courts.
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The drafter of a statute or a regulation is confined to a single statement of a legal
proposition. Each provision has to be tig ht. There is little room for explaining
scope or context. There is the additional constraint that the longer a statute is, the