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Vol 23 No 1 Jan/Feb 2018

Book of the Month

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The Law of Privilege

Edited by: Bankim Thanki
Price: £195.00

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The Nature of the Common Law New ed

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Melvin Aron EisenbergKoret Professor of Law, University of California, Berkeley, USA

ISBN13: 9780674604810
ISBN: 0674604814
Published: July 1991
Publisher: Harvard University Press
Format: Paperback
Price: £27.95

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.

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The social functions of courts; foundational principles - objectivity, support, replicability, responsiveness; social propositions - moral norms, policies, experiential propositions; 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; modes of legal reasoning - reasoning from precedent, reasoning from principle, reasoning by analogy, reasoning from doctrines established in the professional literature, reasoning from hypotheticals; overruling and other modes of overturning - overruling, prospective overruling, transformation, overriding, the drawing of inconsistent distinctions, noninterpretive elements of the common law; 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.