Thursday, October 22, 2009

Judicial Interpretation of Statutes Codifying Common Law

After quoting Oregon's statutory codification of the Parol Evidence Rule, Howell (C. J. of Oregon Sup. Ct., 1978) notes:

"This court, however, has never read the statute in such a manner, but instead has treated the statute as a codification of the common law parol evidence rule . . . Although [our] decisions may be inconsistent with a literal reading of the statute, which has been in effect since 1862, they can be justified under the general rule that statutes codifying the common law are to be construed in a manner consistent with the common law . . ."

Fascinating. What if a legislature wants to overturn judicial precedent by deliberately codifying a common law rule in a manner that is inconsistent with the precedent? A legislature must be careful in drafting a bill to make sure that it explicitly states its intent if it conflicts with judicial precedent.

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