Scalia is right: common law methods are anachronistic in a modern statutory age. Posner is right: Scalia does not have a suitable substitute. Give up? No. Look abroad. In civil law countries they have been working on modern methods since the French Civil Code of 1804. Had only we paid more attention to David Dudley Field and less to James Carter. Had only the law schools not misled us with their worship of common law methods. Forgive me for suggesting (again) Maxeiner, James R., Scalia & Garner’s Reading Law: A Civil Law for the Age of Statutes? (August 18, 2012). Available at SSRN: http://ssrn.com/abstract=2132581
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Scalia is right: common law methods are anachronistic in a modern statutory age. Posner is right: Scalia does not have a suitable substitute. Give up? No. Look abroad. In civil law countries they have been working on modern methods since the French Civil Code of 1804. Had only we paid more attention to David Dudley Field and less to James Carter. Had only the law schools not misled us with their worship of common law methods. Forgive me for suggesting (again) Maxeiner, James R., Scalia & Garner’s Reading Law: A Civil Law for the Age of Statutes? (August 18, 2012). Available at SSRN: http://ssrn.com/abstract=2132581