Document Type

Chapter of Book

Publication Date



common law, statutory interpretation, delegations to courts

Subject Category

Courts | Law | Legislation


It is hard to find consensus on questions of statutory interpretation. Debates rage on about the appropriate goals of interpretation and the best means of achieving those ends. Yet there is widespread agreement, even among traditional combatants on the statutory interpretation field, when it comes to so-called “common-law statutes.” Textualists concede that text is not controlling; originalists admit that judicial construction of common-law statutes need not be keyed to the specific intent of the enacting Congress; and staunch defenders of strict statutory stare decisis allow frequent departures from precedent.

So what are common-law statutes? It is easy enough to name a few, and courts and commentators often do. The list always begins with the Sherman Act, and typically includes Section 1983, the Taft-Hartley Act, and statutory provisions on securities fraud. In the realm of intellectual property, scholars have argued that many of the major enactments make the cut. What is missing is any clear conception of what defines this special category, uniting common-law statutes and distinguishing them from the rest. The relevant case law and commentary reveal two features that are thought to qualify statutes like the Sherman Act for special treatment: Such statutes are written in broad terms and build on a tradition of common-lawmaking. In this Chapter, I argue that neither of the proposed distinctions is persuasive, as the relevant features are shared by many other statutes that do not appear on the privileged list. Any differences are in degree, not in kind.

Of course, it is hardly uncommon for the law to mistake points on a continuum for separate categories, and the “common-law” label may serve as an easy — if mildly inaccurate — shorthand for the group of statutes that actively embrace lawmaking by courts. I hope to show, however, that the label is not so benign. Instead, the continuing fiction that there is a categorical difference between common-law statutes and “normal” statutes like, say, Title VII of the Civil Rights Act of 1964, works to obscure the difficult line-drawing problems that interpreters otherwise would have to confront. If statutes like the Sherman Act and Title VII coexist on a scale of statutory vagueness, it is a mistake to suggest that questions of interpretive methodology switch on and off in an automatic fashion depending on whether the statute at hand is a common-law statute.

An additional problem with the “common-law” label is that it diverts attention away from significant questions concerning delegations of lawmaking power to the judiciary. How should the legal system identify such delegations? When are they a good idea, and when should Congress rely on agencies instead? The notion that delegations to courts can be identified, and justified, simply by drawing an analogy to the Sherman Act conceals those issues from view. But once the label is peeled back, it becomes clear that our current treatment of common-law statutes raises more questions than it answers about delegations to courts.