Should the Courts Be Allowed to Repeal Obsolete Law?

Nearly 30 years after the publication of his celebrated (and controversial) book A Common Law for the Age of Statutes, the Honorable Guido Calabresi sat down with Philip Howard to discuss the ongoing problem of obsolete law in America. Judge Calabresi is a senior judge on the U.S.Court of Appeals, Second Circuit, and a professor at (and former Dean of) Yale Law School.

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What prompted you to write A Common Law for the Age of Statutes?

I teach law, and I saw all sorts of laws that no longer made any sense. Some were very old. Some were laws that were passed relatively recently to meet a particular emergency and then just stayed in place because of inertia in the legislatures. This inertia was intentional -- to make it difficult to make laws -- but it makes it even harder to repeal them. I kept running into outmoded laws, and so I started asking, "Is there anything that can be done?"

My suggestion in the book is that courts be given the power by legislatures to order the sunset of a statute. If the legislature disagreed with a court's determination, they would of course be empowered to overrule the court and reenact the statute. Whether and when a law should sunset depends on the law itself. Some become obsolete almost immediately, while others remain relevant for a very long time. What you need is judgment, and it's a kind of judgment that, at least in the old days, common law judges used in updating the common law: "This no longer fits; this doesn't treat like cases alike."

There's nothing wrong with giving courts this power. The whole common law power in the United States is delegated to courts by legislatures. There is nothing radical about a legislature delegating an additional power that, in some circumstances, could allow a court to rule that a statute should sunset -- subject always to the power of the legislature to reenact it.

Other countries have different mechanisms for dealing with this. The Ministry of Justice in Germany, for example, sees as part of its role as making sure laws fit in to larger formulations that look like codes.

Justice Benjamin Cardozo suggested that! He wanted to have a Ministry of Justice do something of that sort. This was the origin of the Law Reform commissions in many states. The problem is that these commissions can deal with laws that are uncontroversial, but they will not deal with laws where there is a significant interest on one side and a significant interest on the other. 

The difference between a country like ours and a country like Germany or England is that whatever party is in power in those countries can usually get its program through. Our system was created to impede lawmaking. There's a lot to be said for suspicion of legislatures, but once you're surrounded by laws, then the difficulty of getting rid of them becomes a real problem.

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Do you think perhaps that we have a constitutional flaw here? Once a law is passed it becomes almost impossible to repeal because it's immediately surrounded by an army of special interests.

Of course, all of the inertial forces become even greater with respect to getting rid of a law. Today, the only way to change a statute that is out of date is with yet another statute. It ratchets only in one direction, so you get ever more. Every change creates another statute, which in time itself becomes obsolete.

Do you think that the obsolescence of law has accelerated as regulatory law has become more prescriptive and specific?

Yes, I think the obsolescence has increased, because the more detailed the laws are, the more they can get out of date.

Do you think that the accretion of law has corroded the gears of democracy?

I think it has certainly changed the kind of democracy we have. If you were to ask a majority,  it would be far more difficult for them to say that we are governed today by rules that make sense. And the problem only gets worse as a society and its political system get accustomed to having things that don't work. It may be frustrated, but it doesn't react as angrily because it's gotten used to all sorts of things that aren't functioning. If courts were empowered to sunset these old laws and break the legislative inertia, we'd be much closer to the vision of democracy we had at the very beginning.

Presented by

Philip K. Howard is a lawyer and author, and the chair of Common Good. He most recent book is The Rule of Nobody.

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