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.
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."