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. (3)
If approved by voters, the initiated legislation would have added several new sections to the California Civil Code imposing sweeping obligations on certain for-profit businesses operating 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 Legislature debated and ultimately enacted the compromise legislation with the unanimous vote of both chambers. Immediately after then-Governor Jerry Brown signed the bill into law, (8) Californians for Consumer Privacy withdrew the initiative proposal. (9)
While the California legislative debate was ongoing, two major global events gave heightened political salience to concerns about personal data privacy. The first was the prominent news story concerning the unauthorized use of more than eighty-six million Facebook clients' personal information by Cambridge Analytica, a British political consulting company, to "microtarget" political advertising for the purpose of influencing voters in the 2016 U.S. presidential election. (10) Mark Zuckerberg, CEO of Facebook, Inc., testified before two congressional committees in April 2018 in response to the scandal. (11) The second was the General Data Protection Regulation (GDPR), which took effect in the European Union's twenty-eight member states on May 25, 2018. (12) The GDPR made sweeping revisions to EU laws protecting data privacy. Global in reach, the new regulations apply to any person, business, or organization--no matter where located--that gathers, processes, manages, or stores the personal data of natural persons located in European Union member states. (13)
These news stories illustrate the rapid globalization of law in a contemporary, ever-changing world. Not until 2018 did we learn that for-profit foreign enterprises gathered massive amounts of personal information about American citizens without authorization, and then used that data to microtarget potential voters with digital content to achieve nefarious purposes--including influencing elections on momentous issues. The California legislative initiative and the compromise legislation that followed reflect the realities of modern lawmaking in response to rapid developments in a global marketplace.
Now imagine, just for a moment, how long it would have taken a common law legal system to meaningfully respond to the many complex and interrelated issues related to global information privacy. Judge-made law develops incrementally over time on a case-by-case basis, offering the time-tested advantages of stability and predictability. On the other hand, the slow pace of common law evolution is ill-suited for the rapidly developing technological world of the twenty-first century and its novel legal issues that demand immediate resolution. By its very nature, the common law judicial process resolves issues at the most granular level based on fact-specific cases and controversies. But the complex legal issues of today call for policy-driven solutions on a global scale. The European Union's GDPR, the California initiative proposal, and California Assembly Bill 375 all reflect legislative attempts to address compelling social and technological issues that affect virtually everyone and every nation. The critical issues of the day simply cannot realistically be resolved by the slow pace of incremental, case-specific, common law adjudication. (14)
My premise is that for all practical purposes--whether we like it or not--American common law is dead. (15) Yet the legal academy, by continuing to teach law students primarily common law reasoning tied to subject-matter silos, invented long ago in an unsuccessful effort to "scientize" law, (16) remains rooted in the common law myth of eighteenth-century Blackstonianism17 and the "law is science" myth of nineteenth-century Langdellianism. (18) But today's law students will be tomorrow's lawyers, who will practice in what legal scholars long ago de nominated the "age of statutes." (19) Over the last century, the corpus of American law has expanded to encompass not only statutes but also court rules, state and federal administrative regulations, executive orders, international treaties, supranational conventions, common market legislation, and interstate compacts. (20) Legal academics must stop pretending that we live and work in a common law legal system driven by judge-made law. (21) Otherwise they do a disservice to their students as well as the bench and the bar. Indeed, a significant reason modern legal scholarship goes largely unread is that today's scholars have lost sight of the needs of both jurists and the practicing bar in an increasingly complex and interconnected statutory domain. (22)
One scholar recently observed that "[t]he relationship between positively enacted legislation and uncodified, 'unwritten' law is a perennial source of puzzles." (23) This Article aims to shed light on some of those puzzles, and to urge the legal academy to come to terms with American law as it is today, not as it once might have been or even as scholars wish it were. Part I defines common law and distinguishes it from other sources of law. Part II addresses the evolution of the American legal system to the present day, emphasizing its heavy reliance on statutes, codes, rules, and other positive law. Part III describes the often-misleading taxonomy that comparative law scholars have devised to classify legal systems and explains how it often mischaracterizes the ever-changing, cross-fertilizing nature of legal communities. Part IV addresses the entrenchment of common law in the American legal academy, the need for reform, and the beginnings of innovation by a few forward-thinking law schools. Part V briefly concludes...