The Death of Common Law

By Entrikin, J. Lyn | Harvard Journal of Law & Public Policy, Spring 2019 | Go to article overview

The Death of Common Law


Entrikin, J. Lyn, Harvard Journal of Law & Public Policy


The supremacy in law of statute over judicial decision-making remains in a democracy, in an oligarchy, in a monarchy, and even in a tyranny. Even when a court declares a statute unconstitutional, this relationship between legislature and court is unaltered; the court is merely declaring that the statute is inconsistent with higher legislation. In an age of statutes, both judges and legislators make law, but they do not make it in the same way or even in the same sense. Specifically, judge-made law is subordinate law.

Alan Watson, The Future of the Common Law Tradition, 9 DALHOUSIE L.J. 67, 80 (1984).

INTRODUCTION
I.   DEFINING AND DISTINGUISHING COMMON LAW
     A. Law in the American Colonies
     B. Post-Revolution Reception Statutes
     C. The Myth of American Common Law
II.  POSITIVE LAW AS PRIMARY LEGAL AUTHORITY
     A. Influence of Philosophers Bentham and
        Austin
     B. American Codification Initiatives
        1. Antebellum Codification Efforts
        2. Field Codes
        3. Other State Codification Initiatives After
           1850
        4. Post-Civil War Codification Movement:
           1865-1900
        5. Uniform Law Commission
        6. American Law Institute
        7. Demise of Federal Common Law
        8. Enactment of United States Code Titles as
           Positive Law
     C. International Treaties, Conventions, and
        Agreements
     D. The Age of Positive Law
III. GENERAL ATTRIBUTES OF MAJOR WESTERN LEGAL
     SYSTEMS
     A. Legal System Taxonomy
     B. Attributes of the Common Law Tradition.
     C. Attributes of the Civil Law Tradition
     D. Mixed Legal Systems
     E. Convergence
     F. The Diminishing Sphere of American
        Common Law
        1. Legislative Reforms
        2. Rise of the Administrative State
        3. Legislative Overlays on "Private"
           Common Law
           a. Torts
           b. Contracts
           c. Property
        4. Criminal Procedure
IV.  REFORMING AMERICAN LEGAL EDUCATION
     A. Colonial and Post-Revolutionary Legal
        Education
     B. Early American Law Schools
     C. Adding Legislation to the Traditional
        Curriculum
     D. Late Twentieth Century Curriculum
        Developments
     E. Legal Education for the Twenty-First
        Century
V.   CONCLUSION

INTRODUCTION

In October 2017, a proposed initiative captioned "The Consumer Right to Privacy Act of 2018" was filed with the California Attorney General for voters' consideration in the November 2018 general election. (1) The filing occurred soon after big business interests had managed to block action by the 2017 California Legislature on Assembly Bill 375, which would have strengthened state laws protecting personal information privacy. (2)

Section 3 of the proposed initiated statute stated its purpose:

[I]t is the purpose and intent of the people of the State of California to further the [California] constitutional right of privacy by giving consumers an effective way to control their personal information, thereby affording better protection for their own privacy and autonomy, by:

A. Giving California consumers the right to know what categories of personal information a business has collected about them and their children.

B. Giving California consumers the right to know whether a business has sold this personal information, or disclosed it for a business purpose, and to whom.

C. Requiring a business to disclose to a California consumer if it sells any of the consumer's personal information and allowing a consumer to tell the business to stop selling the consumer's personal information.

D. Preventing a business from denying, changing, or charging more for a service if a California consumer requests information about the business's collection or sale of the consumer's personal information, or refuses to allow the business to sell the consumer's personal information.

E. Requiring businesses to safeguard California consumers' personal information and holding them accountable if such information is compromised as a result of a security breach arising from the business's failure to take reasonable steps to protect the security of consumers' sensitive information. …

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