Choking on Statutes Revisited: A History of Legislative Preemption of Common Law Regarding Child Custody

In 1982, Professor (later Dean, and still later Judge) Guido Calabresi, published a book entitled A Common Law for the Age of Statutes.' The book deservedly achieved wide recognition in the academic world, netting 1,253 citations in a recent Westlaw search.2 Surprisingly, acceptance by the intended audience, i.e., the judiciary, was significantly more mutedonly nineteen citations of the book could be found in a similar Westlaw search of state appellate decisions, and another search found twenty-four federal court citations.' The theme of the book is that the common law had been largely supplanted by "statutorification," for which a remedy is needed, especially because statutes often become obsolete over time. Judge Calabresi's goals for the 319 pages of closely reasoned argument are captured in the first paragraphs of the first chapter, engagingly titled "Choking on Statutes."