On Resegregating the Worlds of Statute and Common Law

Strauss, Peter

The focus of this article is the issue of integrating statutory and other law. A substantial number of statutory cases decided during October Term 1993 offered the Court a choice between treating statutes as static, isolated instructions from higher authority, and regarding them as part of a "unified system of judge-made and statute law." It tended to make the former choice, one that segregates statutes from the common law. The argument here is that, in the process, it diminishes both statute and common law, both legislature and court. Integrating statutes and common law has the opposite effect. Legislative influence and statutes are extended when statutory policy becomes the basis for analogical reasoning to decide cases that have not been provided for. The judicial function is also augmented if the world in which judges act to promote coherence includes statutory as well as judge-made law. Thus, to include statutes implies that judges may shape their readings within the possibilities offered by the text, over time, as changing general law and the social circumstances to which it responds may suggest.


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The Supreme Court Review

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The University of Chicago Press
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May 24, 2016