I am gratified by the responses, both public and private, to my essay, “Does Common Law Survive the Age of Statutes?” I see agreement on the need to maintain knowledge of the common law among lawyers of all stripes and statuses. Jeffrey Bristol agrees that “we often lack the sharpest minds to serve as both judges and legislators, coming from deep practice rooted in the common law tradition.” He lays blame on legal “elites,” though that broad category includes common law’s defenders, too. It is very gratifying to know that Adam MacLeod’s jurisprudence seminars at the Alabama Judicial College are helping to shore things up in that state.

But I worry that essential efforts such as judicial education may not stop what I see as common law’s retreat. It has been suggested to me that the Next Generation Bar Exam, for which students beginning law school this fall will sit, diminishes common law subjects. (The published critiques I have found lament it running roughshod over state variation.) If the bar exam plays down the common law, law school curricula will follow suit and our legal inheritance will be further impoverished.

Or maybe the schools started the trend. Compare Yale Law School’s current academic requirements to the Suffolk University Law School curriculum of 1940. The documents are not apples-to-apples, but one has a few morsels of fruit, and the other is a common-law cornucopia.

In the area of trusts, MacLeod ably describes how the law sprang from “moral realities, norms, and institutions that people already believed they had an obligation to obey.” It’s a nice illustration of an important point MacLeod makes well: Common law “stands prior to and independent of political power.”

Coincidentally and unfortunately, an example from the Uniform Trust Code illustrates a way statute may sand down common law. The UTC’s creation of the “qualified beneficiary” led the Appeals Court of Massachusetts in Schwalm v. Schwalm to omit trustees’ obligations to beneficiaries not in the “qualified” category. The litigants evidently did not educate the court about the overarching duty of trustees to all beneficiaries. That’s just one data point, and maybe that mistake will be corrected. But maybe it is a harbinger of a “statues-first” legal system.

I did not intend my argument to be that statute law always and outright kills common law. I meant to be more subtle, discussing an area of novel challenges—information—where I see insufficient common law development, and I laid that at the feet of statutory interventions.

Jeffrey Bristol has me declaring “that common law is terminal (killed by statute),” an overreading that seems to elicit some passion. Bristol brings evidence of healthy common law development, such as the Coblentz agreement, named after the 1969 Florida case in which an insured assigned his rights under a policy to a claimant. If my thesis were that common law is dead, that would be damning, but it’s also just a data point. His other evidence of common law development is the shift from caveat emptor to a disclosure requirement in real estate sales. The Florida legislature’s development of statutory law “to clarify and specify the duties” makes the evidence equivocal. Is legislative follow-up evidence of common law’s strength or its weakness?

At some points, Bristol is lusty in praise of statutes. His piece could be recast as a defense of them. “[S]tatute dominates common law,” he says. “Why? Sovereignty. Parliament has sovereign legislative power. Courts don’t.” He argues that Henry II originated the common law. “The common law was statutory law.”

Henry II propagated systems of legal administration, but Arthur Hogue’s Origins of the Common Law* more clearly treats the break from Henry’s absolutism as common law progress. Subsequent history put kings under law and gave currency to concepts like “the rule of law” and “due process.”

There is a yin and yang relationship between common law and civil law, of course, with each tradition having parts of the other. Statutes definitely have a historical role in the development of common law. But we don’t prefer to eat compost just because plants grow from it. The fictional passage of authority from a populace to a legislature, come what may, seems weaker as a source of authority than the common law system: inductive, tradition-bound, and guided by dispute resolution, not attention- or election-seeking.

There are assertions in Bristol’s piece that elicit wonder. To address one, the American Law Institute’s “Principles of Law, Data Privacy” is emphatically not a common law document.

I’m much more inclined toward MacLeod’s optimistic, clear, and intuitive take. “The common law covers the whole range of human activity and all of its parts support all its other parts.” As I read Judge Calabresi, he was lamenting how statutes too often tear the law’s seamless web, a concern I share.

MacLeod and I see the merit in Justice Gorsuch’s treatment in Carpenter of information in third-party hands as a bailment. (Bristol sees it as an error a first-year law student shouldn’t make.) Regrettably, Gorsuch’s opinion on the bailment issue won no other adherents. Part of the reason is that Carpenter’s counsel declined to press common law treatment of information as property, looking for property rights in the Telecommunications Act. It’s great if statutes are founded in common law principles, but they do seem to misdirect a lot of people on the bench and at the bar.

Neither author directly denies that the common law is under threat. Bristol agrees that “general concern about common law’s health isn’t misguided.” Says MacLeod, “The problem is not statutes. The problem is how judges read statutes.” So on the fundamental issue, we’re aligned.

If capacious modern legislatures threaten common law, the questions include: What are the precise dynamics? How and how quickly might erosion of the common law affect our legal regime and precious liberties? What can be done? What could we do to grow and go beyond MacLeod’s work to preserve this ingenious part of our legal system?

The common law is not dead. Neither is it getting stronger. The question remains: How do we get a system that continues to develop the common law?

*at pages 33–34