The Common Law and Statutes

Peter L. Strauss, Columbia Law School

Abstract

Originally presented as a part of the John R. Coen Lecture Series at the University of Colorado School of Law on April 20, 1998, this essay takes issue with the currently fashionable argument that statutory meaning is forever fixed by a statute's text as it would have been understood when it was written. This static view of meaning, it argues, tends to defeat, not support, legislative processes, by engendering excessive friction between the legislative and judicial branches. Nor can it be defended, in a common law system, by the bromide that only a legislature is authorized to make law; while legislative authority is primary, courts are also sources of law through the operation of the common law system of precedent. Indeed, the application of the system of precedent to statutory interpretation in the United States, a natural element of our common law heritage, makes the "static meaning" position incoherent. Drawing comparisons to civilian systems and textual opinions from the Supreme Court, the essay concludes that static textualism ignores the precedential quality of judicial decision and defeats the evolution of law through interaction between legislatures and judiciaries, that are defining characteristics of our common law system.