1 Eugene Wambaugh, The Study of Cases: A Course of Instruction in Reading and Stating Reported Cases, Composing Head-Notes and Briefs, Criticising and Comparing Authorities, and Compiling Digests 94 (Boston: Little, Brown & Co., 1894). This book, all but unknown today, was the pre-World War I version of the Legal Process, Elements of Law, Development of Legal Institutions run of courses. Llewellyn thought Wambaugh's presentation representative of thought “embracing the zenith-run of formalism, pseudo-deduction, attempted rigidity, in American appellate judging.” Karl N. Llewellyn, The Common Law Tradition 73 (Boston: Little, Brown & Co., 1960). Yet it is surprising to note the similarilty between Llewellyn's treatment of precedent in mid-century in The Bramble Bush: Some Lectures on Law and Its Study 35–38 (New York: private printing, 1930), with the Harvard professor's 35 years earlier, Wambaugh, supra, at 8–29.Google Scholar

2 Wambaugh, supra note 1, at 81, 82.Google Scholar

3 Willard Hurst describes the necessary “reallocation of research energies” in Foreword: Legislation as a Field of Legal Research, 2 Harv. J. on Legis. 3 (1965).Google Scholar

4 Grant Gilmore, Security Interests in Personal Property (2 vols. Boston: Little, Brown & Co., 1965).Google Scholar

5 See Grant Gilmore, The Ages of American Law (New Haven, Conn.: Yale University Press, 1977); id., The Death of Contract (Columbus: Ohio State University Press, 1974).Google Scholar

6 Gilmore, Ages of American Law supra note 5, at 95.Google Scholar

7 See Alexander M. Bickel, The Supreme Court and the Idea of Progress (New York: Harper & Row, 1970); id., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill. 1962); id. & Wellington, Harry H., Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1 (1957); Charles L. Black, Decision According to Law: The 1979 Holmes Lectures (New York: W.W. Norton & Co., 1981); Charles L. Black, Jr., The People and the court: Judicial Review in a Democracy (New York: Macmillan, 1960); Harry H. Wellington & Lee A. Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson. 72 YaleL.1. 1547 (1963); Wellington, Harry H., Labor and the Federal System, 26 U. Chi. L. Rev. 542 (1959).Google Scholar

8 Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Cambridge: private printing, tent. ed. 1957).Google Scholar

9 Title to chapter 1. With this view Calabresi may be helping to train “the next generation of lawyers” described by Gilmore: “The next generation of lawyers may be able to see more clearly than our own generation has done the virtue of leaving problems to a common law development instead of rushing in with a ready-made statutory solution. And, if statutes are unavoidable, the next generation of draftsmen may be able to avoid the horrors of overdrafting which have plagued us since the 1930′s.”Gilmore, Grant, Putting Senator Davies in Context, 4 Vt. L. Rev. 233, 245 (1979).Google Scholar

10 Calabresi at 1:Google Scholar

In this book I will argue that many disparate current legal-political phenomena are reactions to this fundamental change and to the problem, it has created. These phenomena include events a5 diverse as: the increasing tendency of courts to find that constitutions, and especially notions of equal protection, require the invalidation of statutes; the development of “passive-virtue” theories, associated especially with Alexander Bickel, which would enable courts to force legislatures to take a second look at constitutionally doubtful statutes; the development of theories and practices of judicial interpretation of statutes which would make even the proverbial Jesuit blush if they were viewed as attempts to discern any kind of legislative intent; the delegation of substantial authority in lawmaking to administrative agencies; the pressure for sunset laws, which would automatically repeal statutes or regulations after a fixed numer of years; and the insistent suggestions for radical reform of our legislature or even or our whole system of checks and balances.Google Scholar

11 If the legislature reenacts the statute it establishes that the statute was not obsolete.Google Scholar

12 The closest Calabresi comes are his references to “our desire for continuity and change rather than quick responsiveness” (at 72) and to “the legal fabric … [which] reflects underlying values of a people” (at 98).Google Scholar

13 Among other things Calabresi listed “the frustrating slowness of the courts in accepting change, all made legislative lawmaking seem the appropriate solution” (at 44); “statutes often seemed needed because the common law was changing too slowly to deal adequately with rapid changes in society, even in traditionally common law fields. Moreover, when the common law did change rapidly to meet crises, it often created uncertainties that only statutes could resolve” (at 75).Google Scholar

14 See text at p. 462 supra.Google Scholar

15 At 73–78. He begins thus, “[t]he orgy of statute making has not occurred by chance.”Google Scholar

16 Grudging as it often is; see, e.g., at 163.Google Scholar

17 Calabresi acknowledges some legislative capacity, beyond response to crisis, when he describes increasing numbers of statutes as a response to the need for solutions “more structured or more immediate than could be afforded by judicial decisions” (at 5, italics added). Structure is provided by “statutes … so detailed and technical, specific in establishing rights, requirements, and procedures, that it is unthinkable to try to establish them in a common law fashion” and by statutes “designed to yield uniformity in a large nation” (at 74). But the notion of legislation as response to crisis pervades even in its qualification, e.g., “[n]ot all of our recent statutes were the result of real crises. Sometimes the old allocation of entitlements made good sense” (at 76).Google Scholar

18 Report of Commission on Codification of the Law to Governor of Massachusetts (1837), in William W. Story, ed., The Miscellaneous Writings of Joseph Story 689 (Boston: Little, Brown & Co., 1852) generally attributed to Story. who was chairman of the commission, on the basis of the extreme similarity of the views expressed with those in Joseph Story, Address to the Suffolk Bar (1821), in id. at 198, and especially Story, Law, Legislation and Codes, 7 Encyclopaedia Americana 576 (F. Leiber, ed. Danbury, Conn.: Americana Corp., 1836).Google Scholar

19 Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (New Haven, Conn.: Yale University Press, 1970).Google Scholar

20 If you put aside books that focus on legislative drafting or that focus on particular statutes, there is not much left. Thai should not be surprising. As we have argued, only a small proportion of legal academics ever frame their questions by statutes. Nor are legal academics known for writing books other than case books. Richard Danzig, The Death of Contract and the Life of the Profession: Observations on the Intellectual State of Legal Academia, 29 Stan. L. Rev. 1125 (1977).Google Scholar

21 Robert W. Gordon, Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 Law & Soc'y Rev. 9 (1975).Google Scholar

22 See id., Historicism in Legal Scholarship, 90 Yale L.J. 1017 (1981).Google Scholar

23 Hurst, Willard, Changing Responsibilities of the Law School: 1868–1968, 1968 Wis. L. Rev. 336, 341 (1968).Google Scholar

24 Id. at 339.Google Scholar

25 Id. Google Scholar

26 The course, originally designated Law in Society was later titled The Legal Process. Id. The course is described in some detail in Willard Hurst, The Content of Courses in Legislation, 8 U. Chi. L. Rev. 280, 291 (1941).Google Scholar

27 This is the recollection of one author, who took the course in the fall of 1968, confirmed by her notations in the text and those of a student who used the same book the following year.Google Scholar

28 This was particularly apparent in Hurst's legislation course when he dealt with Wis. Stat. §§ 97.02, 93.09, and 97.25 (1949), which set the required fat content for ice cream, custard ice cream, or frozen custard, and sherbert, milk sherbert, or ice milk, and governed the sale of all the above. Willard Hurst, Statutes in Court 264 (Madison, Wis.: College Printing and Publishing, Inc., 1970).Google Scholar

29 He sees an “essential need for helping the student forma working philosophy of the proper relation between law-maker and law-applier. … The whole task is too critical and too large to be squeezed into the crowded confines of existing courses.” (at 287)Google Scholar

30 Hurst, supra note 26, at 294.Google Scholar

31 We were struck by this in looking at J. Willard Hurst, Some Problems in the Relationship of the Legislative and Judicial Processes (Madison, Wis., 1938) (copy in University of Wisconsin Law Library).Google Scholar

32 Supra note 26, at 293.Google Scholar

33 And this is Hunt's hope, that we will see “the statute book as a flexible and enriching source for creative legal thinking.”Id. at 291.Google Scholar