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• W280718466 abstract "This paper will lay out the original understanding of the common and suggest that the original understanding still has something to teach us. Indeed, the same problems that we now face with constitutional law, we are facing with common judges are making it up as they go along. And this is not what the rule of law, the glory of our Anglo -American civilization, is supposed to be all about. Now, I think nobody here really has a hard time understanding what the argument with regard to constitutional is, and George W. Bush probably got a lot of votes for president by making the point that judges should interpret the Constitution and not rewrite it.1 Most of the folks in the legal academy, of course, scoff at that notion, since they believe it is the job of judges to remake the Constitution in a manner that suits their values.2 But there is no doubt if one reads Federalist 78, that Hamilton believed that the job of judges was to implement the Constitution as originally understood by the people who ratified it.3 That, for him, was how a republic ought to be governed, according to the will of the sovereign people.4 That, for him, was the rule of law-him, and justices Scalia5 and Thomas,6 I might add. Something similar can be said, however, with regard to the common law, but this is not a commonly held position at the moment. I suggest that the more typical approach is the notion -and justice Jefferson alluded to it7 -that it is the job of the common judge to bring the into line with current social desires; to make the do, as Holmes put it, what is then regarded as convenient.8 Moreover, anyone who has studied the legal history of this country understands that many of the basic rules of our common were altered by judges in the 9 19th Century so that, for example, the sound price rule in contracts was replaced by the rule of caveat emptor;9 absolutely liability in trespass was replaced with the of negligence;10 and absolute liability for nuisance was replaced by the reasonable use concept in property law. More recently, again as you all know, the common was altered in the middle of the 20th Century to impose strict products liability on manufacturers in place of the negligence standard, occasionally to impose a duty on landlords to ensure that tenants, persons, and property were protected.12 And, although this was certainly equally the product of the Uniform Commercial Code, caveat emptor was changed to implied warrantees of merchantability and to disallow unconscionable contracts.13 Still -and this is my point -I think we can make some distinctions between what was done in the name of the common in the 9 19th Century and what was done in the 20th. I think the 19th Century judges have a better claim to legitimacy because they maintained that they were reaffirming an already existing situation, and they maintain that they were acting merely in accordance with the well established spirit of the age.14 Everybody pretty much maintained that the common that previously existed was still being followed and the judges were not legislating. What happened in the 20th Century was different. More or less consciously, just as the Warren court did in equal protection,15 1st Amendment,16 and criminal procedure cases,17 common judges took it upon themselves to alter the in accordance with what they believed to be wise social policy; not social policy set by custom, mind you, but social policy that they believed was forward -looking and contributed to a better version of America. Like the Warren court, these common judges wanted to refashion American society, and what they were doing had redistributive implications. This is still going on in some of our common courts -big news. And some people claim that it is the job of the judges to be the law making partners of the legislature, and that in the name of the common law, they can reject and nullify even statutes where they believe it is appropriate. …" @default.
• W280718466 created "2016-06-24" @default.
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• W280718466 date "2004-04-01" @default.
• W280718466 modified "2023-09-22" @default.
• W280718466 title "The Development and Application of Common Law" @default.
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