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ȱ HARVARD JOURNAL of LAW & PUBLIC POLICY ȱ VOLUME 42, NUMBER 2 SPRING 2019 ARTICLES THE DEATH OF COMMON LAW J. Lyn Entrikin ........................................................................ 351 A COASEAN APPROACH TO COST-BENEFIT ANALYSIS D. Bruce Johnsen ..................................................................... 489 THE CURE FOR AMERICA’S OPIOID CRISIS? END THE WAR ON DRUGS Christine Minhee & Steve Calandrillo. ................................... 547 ESSAY THE WORLD AFTER SEMINOLE ROCK AND AUER Paul J. Larkin, Jr. & Elizabeth H. Slattery .............................. 625 NOTE CONSTITUTIONAL AVOIDANCE, SEVERABILITY, AND A NEW ERIE MOMENT Ryan M. Folio .......................................................................... 649 THE TAXATION OF RELIGIOUS ORGANIZATIONS IN AMERICA Grant M. Newman .................................................................. 681 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief RYAN PROCTOR Deputy Editor-in-Chief Articles Editors CHADWICK HARPER Managing Editors HAYLEY EVANS BRAD BARBER DANIEL JOHNSON WILL COURTNEY Executive Editors KEES THOMPSON ANNIKA BOONE GRAHAM CARNEY Deputy Managing Editors Assistant Articles Editors RYAN FOLIO NICOLE BAADE NICK AQUART CHANSLOR GALLENSTEIN CHASE BROWNDORF AARON HSU JORDAN GREENE HUGH DANILACK PARKER KNIGHT III KEVIN KOLJACK Articles Board VINCENT LI BEN FLESHMAN GRANT NEWMAN Notes Editors ANASTASIA FRANE DAVID RICHTER AARON GYDE JOSHUA HA SAM WILLIAMS BRANTON NESTOR JAMES MCGLONE JOHN MITZEL Events Manager Chief Financial Officer JOEY MONTGOMERY JACOB THACKSTON ASHER PEREZ JASJAAP SIDHU DYLAN SOARES Technology Manager Subscriptions Manager DOUG STEPHENS IV GRAHAM CARNEY ASEEM JHA JOSHUA STOUT STEVE SZROM Communications Editor R.J. MCVEIGH Senior Editors DAVID BENGER ADAM KING JOEY MONTGOMERY STEVE SZROM ALEX CAVE BRIAN KULP JASJAAP SIDHU MATTHEW WEINSTEIN DOUGLAS COLBY RYAN MAK DYLAN SOARES ANASTASIA FRANE JAMES MCGLONE DOUG STEPHENS IV JOSHUA HA JOHN MITZEL JOSHUA STOUT Editors PAYTON ALEXANDER CHANCE FLETCHER TREVOR LUTZOW ISAAC SOMMERS JOHN BAILEY MARK GILLESPIE ERIK MANUKYAN SEANHENRY VANDYKE MAX BLOOM COOPER GODFREY JOHN MORRISON AARON WARD DAVIS CAMPBELL ALEXANDER GUERIN JASON MUEHLHOFF TRUMAN WHITNEY TODD CARNEY AARON HENRICKS TERRENCE OGREN VINCENT WU NICK CORDOVA THOMAS HOPKINS JAY SCHAEFER WENTAO ZHAI JAMIN DOWDY JOHN KETCHAM STUART SLAYTON ROBERT FARMER STEFAN LEHNARDT ANDREW SMITH Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Massachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are renewed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably prepared using Microsoft Word. Views expressed are those of the authors and do not necessarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2019 by the Harvard Society for Law & Public Policy, Inc. PREFACE This second Issue of Volume 42 of the Harvard Journal of Law & Public Policy contains three Articles and an Essay. Professor Lyn Entrikin opens the issue with an article heralding the death of American common law. She argues that although we have long since entered an age of statutes and agency regulations, legal academics continue to pretend we live in a world driven by judge-made case law, thereby failing to prepare their students for the practice of law. Professor Bruce Johnsen questions the utility of the focus on reducing externalities in traditional cost-benefit analysis and suggests that instead regulations are justified when they can be shown to reduce transaction costs between parties. Christine Minhee and Professor Steve Calandrillo argue that the United States cannot adequately address the opioid crisis without ending the War on Drugs. Lastly, a very timely Essay by Paul Larkin and Elizabeth Slattery take on Auer and Seminole Rock. Larkin and Slattery call for an end to Auer deference and offer a blueprint for what a post-Auer world would look like. I am also pleased to present two student notes. Ryan Folio argues that the rise of textualism has undermined the intellectual foundations of the constitutional avoidance and severability doctrines in statutory interpretation, and Grant Newman outlines how the Tax Code can both intentionally and inadvertently threaten the financial health of religious organizations. I would like to express thanks to all the editors and staff of the Journal for all their many hours of hard work. Without them this forum for conservative and libertarian legal scholarship could not exist. Ryan M. Proctor Editor-in-Chief 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 ..........................................................
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