Farber+and+Frickey

“in an era of statutes, the role of the common law in formulating social policy has become problematic.”

Authors are not necessarily for judicial activism, but "view the legislature as the senior partner in the joint venture of making public policy. But the courts can do a great deal to further the enterprise, and republicanism and public choice are useful tools in definin the border between judicial and legislative prerogatives."

1) **Republicanism** = communitarian 2) **liberalism:** begins with the individual
 * dominant in 18th c. (modern reconstructions based on civic virtue)
 * politics as a distinct sphere in which citizens //rise above// their individual concerns in order to further the //public good//
 * political life as an effort to use the machinery of government to further the ends of private life
 * Public choice theory: ** legislative process/political choices are determined by individuals’ and groups’ efforts to further their own interests (“rent-seeking”)

Common Law reform: increasing 'deference' to the legislature
 * Republicanism and Public Choice Theory as the 2 strands of “The New Public Law” **
 * Republicanism (romanticism?) || Public Choice Theory (cynicism?) ||
 * - government searching for morally correct answers for the sake of the public good; private preferences are secondary || - government as a mechanism for combining private preferences into a social decision without changing those preferences ||
 * //These two theories are in constant tension. They are not mutually exclusive, though: they can be __combined__ in legal analysis.// **
 * “New Public Law” is something of a misnomer: the old public/private law distinction has become very elusive
 * the viability of the CML in the age of statutes: there are situations where the existence of a statute may affect judicial policymaking outside the statute’s domain, i.e. the statute is not directly applicable
 * //**Moragne v. States marine Lines**// (widow tried to bring an action for the wrongful death of her husband at sea, but it didn’t fit the federal wrongful death statutes)
 * needed “some way to update federal law. The statutory language was not easily amenable to any construction that would allow her recovery.”
 * so Supreme Court abandoned the old common law rule
 * sense of republican principles: common law of torts embodying modern public values
 * //**Higginbotham**//: the same legislation strictly applied this time
 * court should not engage in republican inquiries about public values – the legislature has already answered the question
 * **//Miles//:** further retreat from creative judicial role
 * in an earlier (1913) decision, the court had read a rule into a statute, based on the rule’s existence in similar legislation, even though the statute in question didn't actually include it; Congress hasn’t refuted that decision, so the court in //Miles// figures that Congress ‘assumed’ to agree with the 1913 decision
 * Congress “made the decision for us” – presumptions made based on Congress’ //silence// on an issue