The Dead Hand of the Common Law

Abstract

In the November number of this Journal there appeared a very suggestive article by Mr. Justice Young of the Supreme Court of New Hampshire entitled "The Law as an Expression of Community Ideals and the Lawmaking Function of Courts." The essential soundness of the fundamental doctrine therein maintained, substantially indicated by the title, has been admitted by many jurists, in spite of some disapproval and dogmatic assertion to the contrary. In their actual decisions, the courts daily demonstrate its soundness, and not infrequently a written opinion makes an express admission indicating a consciousness of the court's function as a lawgiver.