multi-blogging and the common law


Well, I am now a multi-blogger.  Aside from the site you are looking at now, take a look at  Roaming through it is self-explanatory, and if you keep clicking, you will see that I’ve got a blog on that site, too, and have posted my first entry.  In that blog, I will focus on issues related to nuisance law (hmm… the title of the site gave it away?)  Some of these issues I’ve touched on briefly here before, when discussing, for example, the Rhode Island lead pigment case.   

One issue of common interest, I think, to that site and appellate law in general (Maine or otherwise), and again which I’ve mentioned before, relates to the interface between the common law and modern legislation.  As times have changed; as courts post-Lochner have withdrawn from using their economic philosophies as bases for decision-making; and as an increasing amount of legislation and regulation has been enacted, the general role of the common law in the modern age, and how it develops and changes, is something that could need serious thought.

Given that Justice Storey devoted an entire tome on this subject, I don’t think I’ll finish up with that topic today, in this entry.  The nuisancelaw site, however, includes some examples and thoughts that relate to this area, and I anticipate it will continue to do so in the future.  Nuisance is one area where concrete examples can be cited regarding the interface/conflict between statutory and common law — if only because plaintiffs have tried to use and expand nuisance law as an avenue to avoid statutes like product liability laws, statutes of repose, and so on.   

As legislatures have become more active, with more and more statutes and regulations, the courts’ role may change not only in that they now have to spend a lot more of their time interpreting and applying those laws and rules, but to the degree they can or should take care that their decisions with respect to the common law do not interfere with the other branches’ efforts.  The question is not one of direct preemption (although that can happen), but much broader. 

For example, say a legislature enacts a flat statute of repose – no suing a manufacturer for anything ten years after it launches a product into commerce.  That statute is organized within the jurisdiction’s product liability laws.  The statute is prefaced with lots of findings of fact from the legislature noting, for example, that the law was enacted to encourage manufacturing within that jurisdiction, and to balance a litany of other recited interests.

After the passage of this statute, a plaintiff files a suit that it says is based on the common law – nuisance, or negligence, or another theory.  The defendant is a manufacturer; the alleged harm arrives from use of its product; and the goal of the suit is to hold the defendant liable more than ten years after the manufacturer launched the product into commerce. 

In deciding whether the common law embraces the plaintiff’s theory, what weight should the court give to the statute?  To the legislature’s fact-finding recitations with respect to that statute?  Even of you could parse the statute’s language so it didn’t directly apply, in deciding whether to expand the common law, should the court still consider the legislature’s fact-finding and general balancing of economic factors when it enacted that statute?  What should be the test for when the Court should refrain from expanding the common law because the legislature has acted?  What if the legislative action is non-action – the legislature has not expanded liability since it first passed the law — should that make a difference? 

Golly, maybe I need a third blog just to muse upon these issues.