1991 Articles

Review Essay: Sunstein, Statutes, and the Common Law: Reconciling Markets, the
Communal Impulse, and the Mammoth State

Strauss, Peter

Wrestling with the place of statutes in law suggests the struggles over the relative place of the judiciary, legislature, and executive in government. The recent rounds of judicial formalism in reading statutes respond to real changes in government and its institutions. At the same time, the response threatens to enlarge executive authority at the expense of both Congress and the courts. Turning away from legislative politics and a view of courts as integrators of the legal order permits a centralization of effective authority for government that should seem particularly troublesome in a democracy characterized by enormous government. If the size and ambition of our government are not mistakes - and Sunstein makes that case well - then we need to address its work in ways that both enhance its opportunities for success, and promise restraints on its power. After the Rights Revolution is an important effort in that direction.