Washington Law Review


Have common law courts subtly and incrementally put themselves out of the substantial and traditional business of law-making or, at least, put themselves out of business as we once knew it? More personally, do I belong here? Or am I helping to betray the common law tradition I preach and practice and which has served the citizens of Washington since statehood and before? The short answer is: I think not. Each of the relevant principles, if they are to have any practical application at all, must someday be applied by a court to an actual case, to an actual controversy. I suggest in this Article that regardless of the form these principles ultimately assume—court rule, legislation, or uniform code—it will be through common law courts and common law processes that they ultimately become part of the fabric of our legal culture. Only when a trial judge in King, Clark, or Benton County, Washington, treats them as law and applies them as law in the process of deciding a case will they become "law."

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