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

In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspective of the “New Public Law,” as we conceptualize it, is surprisingly helpful in considering this problem.

In Part I, we briefly summarize two important aspects of the New Public Law: republicanism and public choice. We then address an obvious objection to our project – that our topic relates to private law, and is therefore outside the purview of the New Public Law. Part II turns to important questions about the relationship between statutes and the common law: When should statutes be considered to displace existing common law remedies? In considering a possible reform in the common law, when should a court defer to possible legislative action? In analyzing these questions, we examine two lines of cases, one dealing with tort actions in admiralty, the other with the federal common law of nuisance. These cases exemplify two possible judicial responses to the intrusion of statutes into common law adjudication. Some opinions take statutes as a signal to abandon the common law, but common law can be a valuable adjunct to legislative policymaking. Part III contains some final reflections on the extent to which the common law remains viable as a method of making social policy in an increasingly statutory age.