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  Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution

  Judicial opinions are central in the common-law legal tradition because of the doctrine of stare decisis

  which requires that past precedent constrain and guide later decisionmaking. Application of this doctrine in the first year of law school aids in developing the core skill that defines a lawyer: outcome-predictive legal analysis. Stare decisis as an analytical limiting factor central to legal outcomes is

  however

  increasingly inconsistent with actual American law practice. This trend is most dramatically illustrated through a pair of Supreme Court cases further diminishing the role of precedent in administrative law and in arbitration. Yet despite its increasing disconnect with law practice

  stare decisis is too pedagogically useful to discard; it serves as the organizing principle of a distinctive form of legal reasoning

  and that reasoning remains the value-adding hallmark of American law school training. Accordingly

  this article advocates an intentional removal of stare decisis and the availability of a judicial forum from problem solving before the end of the first year of law school

  even though stare decisis should retain a continued central role. In the analytical vacuum that would occur absent the constraints of precedent

  free-for-all analytical chaos can be avoided by the stepped-up use of statutory interpretation as an organizing principle. Ironically

  the lack of a judicial setting and stare decisis means that the skill law students must now learn is how

  in the early stage of a conflict

  to think like a high-court judge. Much otherwise settled law is now susceptible to being treated as a question of first impression.

  Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution

  In the Harry Potter world

  the magical population lives among the non-magical Muggle population

  but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility

  when combined with the similarities between Harry Potter-stylemagic and American law

  make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained

  normative value in the enactment interpretation

  and practice of law — is given short-shrift by the legal profession. It deserves a far higher place of honor in the law of a liberal republic than it holds today

  and lawyers above all ought not to underestimate the importance of this value. In the end

  it behooves all in the legal wizards’ craft to make more concerted efforts in writing and in drafting of governing legal texts to aid the non-lawyer public in understanding them. Who wants to be a Muggle? No one

  really. The ongoing and critical task of the legal profession is to ensure that governing legal texts and lawyers’ treatment of them do not suffer the vices that “make” non-lawyers into Muggles.

  Who Wants to Be a Muggle? The Diminished Legitimacy of Law as Magic

  As technology rolls out ongoing and competing streams of payments innovation

  exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency)

  the law governing these payments appears hopelessly behind the curve. The patchwork of state

  federal

  and private legal rules seems more worthy of condemnation than emulation. This Article argues

  however

  that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems

  exemplified by Articles 3 and 4 of the Uniform Commercial Code

  has faded in relevance

  while federal law has grown in a specialized consumer protection role. Meanwhile

  private contract law has expanded to fill gaps where payment technology has exceeded the scope of public law. \n\nThe evidence of the successes and failures of payments law in the face of rapid technological development shows that the field is not best governed by comprehensive public regulation on the Uniform Commercial Code model

  but that public law still has an important

  albeit narrower

  role for the future. The most beneficial paradigm for governance of payment systems is a division between (1) private law handling systemic matters of operation

  and (2) public law focused on protecting payment system end-users from oppression

  fraud

  and mistake. This demarcation of lawmaking responsibilities has the greatest track record of success and is the most capable of dealing with a foreseeable future of unforeseeable innovations.

  Apple Pay

  Bitcoin

  and Consumers: The ABCs of Future Public Payments Law

  Abstract: The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states

  section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments

  the original version of section 1-301 was resoundingly rejected

  gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred

  not because of state or national parochialism

  but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws

  and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense

  it failed in part because it did not — to an American audience — make sense in theory.

  Too Clever by Half: Reflections on Perception

  Legitimacy

  and Choice of Law Under Revised Article 1 of the Uniform Commercial Code

  Mark

  Burge

  Texas Wesleyan University School of Law

  Texas A&M University School of Law

  Texas Wesleyan University School of Law

  Texas A&M University School of Law

  Fort Worth

  Texas

  Professor Mark Burge joined the faculty of the law school following eight years of private practice in business and commercial litigation and related transactions. Professor Burge’s practice included representation of financial institutions victimized by kiting and other negotiable instrument fraud schemes

  along with advocacy for plaintiffs and creditors in complex multi-district federal litigation. Professor Burge brings to the law school broad professional experience ranging from a large national firm to partnership at a specialized litigation boutique firm. In his scholarship

  as in his teaching

  Professor Burge seeks to unite legal doctrinal theory to real-world lawyering skills. Currently

  his scholarship focuses contract and commercial law

  and the implications of evolving interpretive methodologies and institutions for the practice of law and American legal education.

  Associate Professor of Law

  Fort Worth

  Texas

  Professor Mark Burge joined the faculty of the law school following eight years of private practice in business and commercial litigation and related transactions. Professor Burge’s practice included representation of financial institutions victimized by kiting and other negotiable instrument fraud schemes

  along with advocacy for plaintiffs and creditors in complex multi-district federal litigation. Professor Burge brings to the law school broad professional experience ranging from a large national firm to partnership at a specialized litigation boutique firm. In his scholarship

  as in his teaching

  Professor Burge seeks to unite legal doctrinal theory to real-world lawyering skills. Currently

  his scholarship focuses contract and commercial law

  and the implications of evolving interpretive methodologies and institutions for the practice of law and American legal education.

  Professor of Law

  Texas A&M University School of Law

  Fort Worth

  Texas

  Associate Professor of Law

  Texas Wesleyan University School of Law

  Legal Writing Institute

  Bachelor of Arts (B.A.)

  History

  University of Houston

  The University of Texas School of Law

  Juris Doctor

  Law

  Supreme Court of Texas

  Admitted to the State Bar of Texas