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NCJ Number: 140011 Find in a Library
Title: Revival of Some Ancient Learning: A Critique of Eisenberg's The Nature of the Common Law
Journal: Minnesota Law Review  Volume:75  Issue:3  Dated:(February 1991)  Pages:539- 580
Author(s): C A Auerbach
Date Published: 1991
Page Count: 42
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: This analysis of Eisenberg's book, "The Nature of the Common Law," concludes that it makes an important contribution to the literature on the growth of the common law, but it suggests inappropriate criteria for social propositions to satisfy before courts may use them.
Abstract: A principal task of any theory of common law adjudication is to explain how the common law in the United States and Great Britain adapted to social, economic, technological, and cultural changes while adhering to the principle of stare decisis. The strength of Eisenberg's work is his recognition that courts modify or abandon doctrinal positions when they conflict with changing propositions of social morality, policy, and experience. Wisely, Eisenberg rejects the distinction between "easy" and "hard" cases that depends on whether the case can be decided solely on the basis of doctrinal propositions or whether social propositions are also involved. He realizes that social propositions are always involved in the judicial establishment, extension, restriction, and application of rules. Instead, an "easy" case is one in which applicable social propositions support the relevant doctrinal rule. However, Eisenberg's analysis is flawed with respect to the criteria that such propositions must satisfy and in its failure to appreciate fully how changes in the common law occur within the confines of the doctrine of stare decisis itself. Footnotes (Author summary modified)
Main Term(s): Legal doctrines
Index Term(s): Jurisprudence
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