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The Death of Common Law

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The Death of Common Law THE DEATH OF COMMON LAW J. LYN ENTRIKIN* The supremacy in law of statute over judicial decision-making re- mains 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 ............................................................ 352 I. DEFINING AND DISTINGUISHING COMMON LAW361 A. Law in the American Colonies .................... 364 B. Post-Revolution Reception Statutes ............ 373 C. The Myth of American Common Law ....... 381 II. POSITIVE LAW AS PRIMARY LEGAL AUTHORITY . 389 A. Influence of Philosophers Bentham and Austin .............................................................. 392 B. American Codification Initiatives ............... 398 1. Antebellum Codification Efforts ........... 399 2. Field Codes .............................................. 403 3. Other State Codification Initiatives After 1850 ........................................................... 406 4. Post–Civil War Codification Movement: 1865–1900 ................................................. 407 5. Uniform Law Commission .................... 408 6. American Law Institute ......................... 411 7. Demise of Federal Common Law ......... 412 * Charles Baum Distinguished Professor of Law, William H. Bowen School of Law, University of Arkansas Little Rock. The author gratefully acknowledges the generous support of the law school, faculty colleagues, and university in granting the sabbatical leave that made this Article possible. 352 Harvard Journal of Law & Public Policy [Vol. 42 8. Enactment of United States Code Titles as Positive Law ............................................ 414 C. International Treaties, Conventions, and Agreements .................................................... 416 D. The Age of Positive Law ............................... 421 III. GENERAL ATTRIBUTES OF MAJOR WESTERN LEGAL SYSTEMS ................................................................. 431 A. Legal System Taxonomy .............................. 432 B. Attributes of the Common Law Tradition . 433 C. Attributes of the Civil Law Tradition ......... 437 D. Mixed Legal Systems .................................... 444 E. Convergence ................................................... 445 F. The Diminishing Sphere of American Common Law ................................................ 448 1. Legislative Reforms ................................ 448 2. Rise of the Administrative State ........... 450 3. Legislative Overlays on “Private” Common Law .......................................... 451 a. Torts.................................................... 452 b. Contracts ............................................ 456 c. Property ............................................. 458 4. Criminal Procedure ................................ 460 IV. REFORMING AMERICAN LEGAL EDUCATION ...... 464 A. Colonial and Post-Revolutionary Legal Education ........................................................ 466 B. Early American Law Schools ....................... 469 C. Adding Legislation to the Traditional Curriculum ..................................................... 472 D. Late Twentieth Century Curriculum Developments ................................................ 477 E. Legal Education for the Twenty-First Century ........................................................... 480 V. CONCLUSION ......................................................... 482 INTRODUCTION In October 2017, a proposed initiative captioned “The Con- sumer Right to Privacy Act of 2018” was filed with the Califor- No. 2] The Death of Common Law 353 nia Attorney General for voters’ consideration in the November 2018 general election.1 The filing occurred soon after big busi- ness interests had managed to block action by the 2017 Califor- nia Legislature on Assembly Bill 375, which would have strengthened state laws protecting personal information priva- cy.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 protec- tion for their own privacy and autonomy, by: A. Giving California consumers the right to know what cat- egories 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 al- 1. See Letter from Mary Ross to Office of the Attorney General, Initiative Coor- dinator (Nov. 17, 2017), https://www.oag.ca.gov/system/files/initiatives/pdfs/17- 0039%20%28Consumer%20Privacy%20V2%29.pdf [https://perma.cc/7836-H9PE] (submitting amendments to the original Initiative Measure No. 17-0039, filed Oct. 12, 2017). For reasons described below, the initiative proposal was withdrawn on June 28, 2018. See California Consumer Personal Information Disclosure and Sale Initia- tive (2018), BALLOTPEDIA, https://ballotpedia.org/California_Consumer_Personal_ Information_Disclosure_and_Sale_Initiative_(2018) [https://perma.cc/D6B8-2XUZ] (last visited Mar. 29, 2019); see also Bryan Anderson, California’s new consumer pri- vacy law isn’t as sweeping as you might think, SACRAMENTO BEE (July 5, 2018), https://www.sacbee.com/news/politics-government/capitol-alert/ article214064999.html [https://perma.cc/9DJE-HV4M]. 2. See Alastair Mactaggart, This is how Californians take back their privacy, SACRA- MENTO BEE (Sept. 20, 2017, 3:13 PM) https://www.sacbee.com/opinion/op- ed/soapbox/article174256331.html [https://perma.cc/RUZ7-F3BG] (describing mo- tivation for proposed initiative measure). Mr. Mactaggart described himself as a California businessman, father, and the “lead sponsor” of the measure. Id. Ac- cording to public records, he personally contributed $3.2 million to Californians for Consumer Privacy in support of the initiative. See Initiatives and Referenda Failed to Qualify, CAL. FAIR POL. PRAC. COMM’N, http://www.fppc.ca.gov/ transparency/top-contributors/nov-18- gen/initiatives-referenda-failed-to- qualify.html [https://perma.cc/8S5P-49MV] (last visited Mar. 29, 2019). Top con- tributors in opposition to the measure included AT&T, Google, Facebook, Com- cast, Verizon, Amazon, and Microsoft. Id. 354 Harvard Journal of Law & Public Policy [Vol. 42 lowing a consumer to tell the business to stop selling the consumer’s personal information. D. Preventing a business from denying, changing, or charg- ing more for a service if a California consumer requests in- formation about the business’s collection or sale of the con- sumer’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.3 If approved by voters, the initiated legislation would have added several new sections to the California Civil Code impos- ing sweeping obligations on certain for-profit businesses oper- ating in the state.4 In addition, it would have authorized any consumer to sue a business for violating the Act.5 And it would have authorized state and local prosecutors to file civil actions to recover monetary penalties from business violators.6 As might have been expected, the initiative proposal spawned a broad hue and cry from the California business community, prompting opponents to negotiate compromise amendments to Assembly Bill 375.7 The 2018 California Legisla- ture debated and ultimately enacted the compromise legisla- tion with the unanimous vote of both chambers. Immediately after then-Governor Jerry Brown signed the bill into law,8 Cali- fornians for Consumer Privacy withdrew the initiative pro- posal.9 3. Initiative Measure No. 17-0039, The California Consumer Privacy Act of 2018, Version 2, § 3. 4. See id. § 4.4–4.6. 5. See id. § 4.9. 6. See id. § 4.10. 7. California Consumer Privacy Act, 2018 Cal. Legis. Serv. Ch. 55 (A.B. 375) (West). The bill had carried over from the 2017 legislative session after business interests blocked its enactment. 8. Then-Governor Brown signed the legislation on June 28, 2018. Id. The legisla- tion takes effect on January 1, 2020, on the condition that the November 2018 bal- lot initiative is withdrawn. See id. § 3. 9. Californians for Consumer Privacy, the political action committee sponsor, agreed to withdraw the proposed initiative measure on the same day the Gover- nor signed the compromise legislation. See Derek Hawkins, The Cybersecurity 202: Why California could be the bellwether for the privacy movement, WASH. POST (June 29, No. 2] The Death of Common Law 355 While the California legislative debate was ongoing, two ma- jor global events
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