Academic

von Jenner on Common Law & Statutory Interpretation

By Lawrence Solum

Mark L Humphery von Jenner (Australian School of Business at UNSW) has posted Should Common Law Doctrines Dynamically Guide the Interpretation of Statutes? on SSRN.  Here is the abstract:

Common law and statute have a complex relationship. Some literature has examined if statutory developments should influence common law doctrines; however, the literature has not examined if and how common law doctrines should influence the interpretation of statutes. Dynamic guidance is one approach to the relationship between common law and statute. Dynamic guidance has two limbs: first, it allows common law doctrines to influence the interpretation of statutes, and second, it allows courts to update interpretations if common law doctrines change. However, the normative validity of dynamic guidance is unclear. This article considers if dynamic guidance is valid. This article argues that dynamic guidance is normatively valid; and thus, that common law doctrines should dynamically guide the interpretation of statutes.

Full post as published by Legal Theory Blog on November 07, 2008 (boomark / email).