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Vanderbilt Law Review

First Page

438

Abstract

The tendency of the lex scripta to supplant the lex von scripta has carried far since Roscoe Pound published his provocative paper on "Common Law and Legislation" in 1908. One can note at the same time indications that statute law is being received with much less hostility. The surprising thing, however, is that legislation in general is not at this day getting a far more sympathetic reception by lawyers and judges. Clearly they make up the professional group which has the largest share in the drafting and enactment of statutes. In actual practice, moreover, lawyers are given to committing private as well as public rules of the game to more or less carefully drawn instruments with a view to implementing broad ideas by detailed provisions calculated to indicate more clearly the desired line of human conduct. At the same time, they eschew common law procedures by resorting heavily to private methods of settlement such as arbitration.

When one considers the huge grab bag of rules of interpretation available to an American judge he is likely to indulge the very human wish that we could discard the whole lot and start afresh. It would be bootless to dwell upon the thought. We cannot break abruptly with the past, even if we would. This is far from saying that we can do little in the way of a calculated effort to adapt existing institutions and ideas to the needs of a complex and rapidly changing society. We have no doubt that deliberate attacks can be made. And it is our purpose in this paper to consider the possibilities of positive action in relation to a particular canon of interpretation, the "ancient shibboleth," as Mr. justice Stone called it, that a statute in derogation of the common law is to be strictly construed.

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