Common Law Is Not an Option

Chapter 2 of James R. Maxeiner, Failures of American Lawmaking in Historical and Comparative Perspectives, Cambridge University Press, Fall 2017 Forthcoming

University of Baltimore School of Law Legal Studies Research Paper No. 2017-03

20 Pages Posted: 8 Nov 2016 Last revised: 21 Feb 2017

James R. Maxeiner

University of Baltimore - School of Law

Date Written: November 1, 2016

Abstract

This is a prepublication print of Chapter 2 of the book Failures of American Lawmaking in Historical and Comparative Perspectives to be published in fall 2017 by Cambridge University Press. That book argues: (1) America through the first century of the republic sought a government of laws and not of precedents; and (2) that a government of laws requires that America develop modern methods of dealing with statutes such as are used in Germany.

Chapter 2 argues that allowing common law methods to dominate lawmaking is not a viable alternative to modern statutory methods. It contends that: (1) common law precedents cannot make a government of laws; (2) America’s common law is unknowable; and, (3) common law rules fail as rules of law.

Chapter 2 challenges common law myths that allow American legal professionals to think that common law methods are a viable alternative to statutory methods: (1) the myth that the United States is a country of common law; (2) the myth that common law is superior to statutory law in individualizing justice; (3) the myth that common law is superior to statutory law in adjusting law in time; (4) the myth that America’s judges have always freely made law; and, (5) the myth of English common law tutelage of American law.

Keywords: common law, civil law, statutes, legal methods, legal reasoning, jurisprudence

Suggested Citation

Maxeiner, James R., Common Law Is Not an Option (November 1, 2016). Chapter 2 of James R. Maxeiner, Failures of American Lawmaking in Historical and Comparative Perspectives, Cambridge University Press, Fall 2017 Forthcoming; University of Baltimore School of Law Legal Studies Research Paper No. 2017-03. Available at SSRN: https://ssrn.com/abstract=2863061

James R. Maxeiner (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States
410-837-4628 (Phone)

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