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Do Cases Make Bad Law ?
| Content Provider | Semantic Scholar |
|---|---|
| Author | Schauert, Frederick |
| Copyright Year | 2017 |
| Abstract | "It is the merit of the common law," Oliver Wendell Holmes observed, "that it decides the case first and determines the principle afterwards."' That the decision of a particular case holds pride of place in common law methodology is largely uncontroversial. And indeed so too is the view that this feature of the common law is properly described as a "merit." Treating the resolution of concrete disputes as the preferred context in which to make law-and making law is what Holmes meant in referring to "determin[ing] the principle" is the hallmark of the common law approach.2 It is true that the common law's methods and theory were developed at a time when most common law judges understood themselves to be discovering the law rather than making it, but Holmes knew better. He fully appreciated that common law judges made law in the process of deciding cases, and nowadays few think otherwise. Common law method is not simply the discovery of immanent law, but rather an approach in which the decision of live disputes in concrete contexts guides the lawmaking function. Moreover, so it is said, making law in the context of deciding particular cases produces lawmaking superior to methods that ignore the importance of real litigants exemplifying the issues the law must resolve. Indeed, this belief in the virtue of a crystallized dispute be- |
| File Format | PDF HTM / HTML |
| DOI | 10.2139/ssrn.668486 |
| Alternate Webpage(s) | https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5372&context=uclrev |
| Alternate Webpage(s) | https://doi.org/10.2139/ssrn.668486 |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
