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21 Harv. L. Rev. 383 (1907-1908)
Common Law and Legislation

handle is hein.journals/hlr21 and id is 444 raw text is: HARVARD LAW REVIEW. VOL. XXI. APRIL, 1908. No. 6. COMMON LAW AND LEGISLATION. N OT the least notable characteristics of American law today are the excessive output of legislation in all our jurisdictions and the indifference, if not contempt, with which that output is regarded by courts and lawyers. Text-writers who scrupulously gather up from every remote corner the most obsolete decisions and cite all of them, seldom cite any statutes except those landmarks which have become a part of our American common law, or, if they do refer to legislation, do so through the judicial decisions which apply it. The courts, likewise, incline to ignore important legisla- tion; not merely deciding it to be declaratory, but sometimes assuming silently that it is declaratory without adducing any reasons, citing prior judicial decisions and making no mention of the statute.1 In the same way, lawyers in the legislature often conceive it more expedient to make of a statute the barest outline, leaving details of the most vital importance to be filled in by judi- cial law-making.2 It is fashionable to point out the deficiencies of legislation and to declare that there are things that legislators cannot do try how they will.3 It is fashionable to preach the 1 See address of Amasa M. Eaton, Proceedings of Seventeenth Annual Conference of Commissioners on Uniform State Laws, 45. 2 E.g., the Sherman Anti-Trust Act, also Senator Knox's plan for an Employers' Liability Act. s For examples from the juristic literature of the past two years, see Carter, Law, Its Origin, Growth and Function, 3; Parker, The Congestion of Law, 29 Rep. Am. Bar Ass'n, 383; Parker, Address as President of the Am. Bar Ass'n x9o7, 29 Green Bag 581; Dos Passos, The American Lawyer, 169; Hughes, Datum Posts of Jurisp., xo6; 2 Andrews, Am. Law, 2 ed., i9o.

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