The Nature of the Common Law

The Nature of the Common Law

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Description

Much of USA 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 not been clear what principles courts use - or should use - in establishing common law rules. In this book, the author develops the principles that govern this process.show more

Product details

  • Paperback | 224 pages
  • 156 x 235 x 14.2mm | 312.98g
  • HARVARD UNIVERSITY PRESS
  • Cambridge, Mass, United States
  • English
  • Revised ed.
  • notes, index
  • 0674604814
  • 9780674604810
  • 723,552

Back cover copy

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 which 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 and subtly argued book, Melvin Eisenberg develops a coherent set of such principles.show more

Review quote

This is a first-rate study of the principles that govern decision-making under common law--it brings out how the social functions of the courts bear on the correctness of a decision. Unlike many works on this topic, it is rich in examples, and sensitive to actual judicial practice. -- Judith Jarvis Thomson Massachusetts Institute of Technology Professor Eisenberg has written a concise, thoughtful and refreshingly optimistic account of the common law tradition. -- Harry H. Wellington Yale Law Schoolshow more

Table of contents

1. Introduction 2. The Social Functions of Courts 3. Foundational Principles Objectivity Support Replicability Responsiveness 4. Social Propositions Moral Norms Policies Experiential Propositions 5. Standards for the Common Law The Standards of Social Congruence and Systemic Consistency and the Model of Double Coherence The Standard of Doctrinal Stability and the Real-World Model of the Common Law 6. Modes of Legal Reasoning Reasoning from Precedent Reasoning from Principle Reasoning by Analogy Reasoning from Doctrines Established in the Professional Literature Reasoning from Hypotheticals 7. Overruling and Other Modes of Overturning Overruling Prospective Overruling Transformation Overriding The Drawing of Inconsistent Distinctions Noninterpretive Elements of the Common Law 8. The Theory of the Common Law Text-based Theories of Law Justification and the Content of the Law The Generative Conception of the Common Law Notes Indexshow more

About Melvin Aron Eisenberg

Melvin Aron Eisenberg is Koret Professor of Law, University of California, Berkeleyshow more

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