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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 unclear what principles courts use-or should use-in establishing common law rules. In this lucid book, Melvin Eisenberg develops the principles that govern this process.
List 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 Index
About the author
Melvin Aron Eisenberg is Koret Professor of Law, University of California, Berkeley.
Summary
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 unclear what principles courts use—or should use—in establishing common law rules. In this lucid book, Melvin Eisenberg develops the principles that govern this process.
