By Donald Scarinci | February 13th, 2013 - 11:31am
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New Jersey lawmakers are cleaning out the closet. A recently introduced bill would remove more than fifty outdated laws off the books.

The New Jersey Law Revision Commission first proposed the list of antiquated laws in a March 2012 report. The Commission is tasked with simplifying, clarifying and modernizing New Jersey statute. One of the less glamorous jobs is to comb through the state’s statutes for provisions that have become outdated.

The Commission last published a report identifying anachronistic or invalid New Jersey statutes more than twenty years ago, and the latest round appears well overdue. The Commission’s 2012 report found that “as much as ten percent of the current statutory material is superseded, anachronistic or otherwise invalid.”

When it comes to outdated laws, New Jersey isn’t alone. Paris recently made headlines for a law that bans women from wearing pants. Efforts are underway to remove that antiquated statute from the books as well.

In New Jersey, the laws recommended for repeal are diverse. Some have been reversed by case law, and, in fact, deemed unconstitutional. For instance, the Unfair Cigarette Sales Act of 1948 was invalidated by Lane Distributors, Inc. v. Tilton, 7 N.J. 349 (1951). After that ruling, the Legislature passed a new law that fixed the constitutional defects, but it failed to repeal the old law. Other rules are no longer applicable. For example, a number of statutes have been superseded by the New Jersey Evidence Rules.

Meanwhile, others laws are simply no longer applicable to modern life. For instance, it is currently illegal for the owner of a ram to let it roam free from August 20 to November 1. Another penal law forbids the use of public drinking cups, which is certainly safe given modern sanitation standards. Another law limits the amount to be spent for feeding a prisoner in county jail to $.50 a day. This is clearly not feasible given inflation.

While many of the old laws may seem harmless, repealing outdated is a valid exercise. As the Commission notes, many of these provisions continue to look like valid law and their retention can be deceptive. As highlighted by a recent California case, antiquated laws can also have real consequences. A California appeals court was forced to overturn the trial court's conviction and remand the case for retrial, based in large part on California’s outdated rape law. The statute, which dates back to 1872, offers protection for married persons tricked into consenting to sex, but not those who are single.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

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