Common Law Judging and the Great Tradition

Many other books also wrestle with the question this book explores: How do judges decide cases in the American common law? But this is no ordinary law book. The rules of the common law are grounded in precedent, and yet the disturbing truth is that competing precedents often allow judges to choose from among two or more solutions. So if the rules alone do not decide the cases, which factors prove decisive? This book takes seriously the fact that we do not actually know the answer to that question. Another surprise is that this uncomfortable insight is a staple of the great tradition of common law writing—from the classic works by Blackstone, Holmes, and Cardozo to the innovative thinking of Duncan Kennedy, Mary Joe Frug, and Patricia Williams. This book moves beyond the usual debates and demonstrates for the first time that these differing accounts can work together to offer a meaningful approach to the challenge of judging. The different perspectives agree that judges should consider all the facts and circumstances of the cases. As it pursues that method, this book explores the lives of those involved in a few famous contracts cases. It uncovers the thinking of the judges who decided them and what it means to reason under conditions of uncertainty. Common Law Judging is a rare achievement: it is a book as much for those who want to learn how to do law well as it is for those who simply wonder how law really works. This is an open access book. ‘This is fascinating. Well-written, an important topic, and an intellectual tour de force.’ Mark A. Lemley, William H. Neukom Professor, Stanford Law School