In the Shadow of the Legislature: The Common Law in the Age of the New Public Law

Abstract

It is a commonplace that we live in a statutory era. A century ago, statutes were considered intrusions into the pristine order of the common law.1 Today, legislatures are the primary source of law, and the statute books grow exponentially. Nevertheless, the common law has shown great vitality. In the past thirty years, for example, the law of products liability has undergone explosive growth.2 The common law has also retained its ability to respond to changes in social values. In contracts, old common law doctrines like employment at will are under increasing attack.3 In property, long-established rules are being challenged in the name of new social values.4 There is nothing new about change in the common law. But in an era of statutes, the role of the common law in formulating social policy has become problematic. Arguments for innovation in the common law are almost always challenged on the ground that the legislature, not the court, is the proper forum in which to argue for reform. Existing common law rules may be challenged for reposing too much policymaking discretion in the courts.5 In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspec-