Much of our law is based on authoritative texts, such as
constitutions and statutes. The common law, in contrast, is that
part of the law that is established by the courts. Common law rules
predominate in some areas of law, such as torts and contracts, and
are extremely important in other areas, such as corporations.
Nevertheless, it has been far from clear what principles courts
use-or should use-in establishing common law rules. In this lucid
yet subtly argued book, Melvin Eisenberg develops the principles
that govern this process. The rules established in every common law
case, he shows, are a product of the interplay between the rules
announced in past precedents, on the one hand, and moral norms,
policies, and experience, on the other. However, a court
establishing a common law rule is not free, as a legislator would
be, to employ those norms and policies it thinks best. Rather, it
can properly employ only those that have a requisite degree of
social support. More specifically, the common law should seek to
satisfy three standards. First, it should correspond to the body of
rules that would be arrived at by giving appropriate weight to all
moral norms, policies, and experiential propositions that have the
requisite support, and by making the best choices where norms,
policies, and experience conflict. Second, all the rules that make
up the body of the law should be consistent with one another.
Third, the rules adopted in past precedents should be applied
consistently over time. Often, these three standards point in the
same direction. The central problems of legal reasoning arise when
they do not. These problems are resolved by the principles of
common law adjudication. With the general principles of common law
adjudication as a background, the author then examines and explains
the specific modes of common law reasoning, such as reasoning from
precedent, reasoning by analogy, drawing distinctions, and
overruling. Throughout the book, the analysis is fully illustrated
by leading cases. This innovative and carefully worked out account
of the common law will be of great interest to lawyers, law
students, students in undergraduate legal studies programs,
scholars interested in legal theory, and all those who want to
understand the basic legal institutions of our society.
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