The Article documents that the general failure of the nineteenth century movement to codify American common law has given way to a quiet piecemeal codification over the past seventy five years. The Article assesses the consequences of this large-scale shift from common law to code. While the jurisprudential concerns voiced by opponents of codification in the nineteenth century (that codification would strip judges of necessary discretion and freeze growth of the law) have not materialized, the recent American codes have shaped the law's subsequent evolution in several critical respects. For one, the Article shows that unarticulated, non-axiomatic views of human nature and the role of the state lurking behind three recent codes have profoundly influenced the course of post-code legal growth. The Article also explores ways that codes have ossified the law at a larger structural level by fixing peoples' conceptions of the relationship between various doctrinal fields. For example, the Article notes that by creating discrete doctrinal fields, codes encourage the bureaucratization of the law, where hyper-specialists fail to examine other aspects of the law that are largely determinative of their hyper-specialties, masking possibilities for reform of fundamental components of the legal system.
Mark D. Rosen,
What Has Happened to the Common Law? -- Recent American Codifications, and Their Impact on Judicial Practice and the Law's Subsequent Development,
Wis. L. Rev.
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/530