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Monday, August 28, 2006

Rosenbaum: Common Law

This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.

Judge James M. Rosenbaum is the Chief Judge in the District of Minnesota.  I clerked for him.

I am an unabashed fan of the Common Law.  If I taught torts – and much to the benefit of young lawyers, I do not – I would ask them to identify the statutes in cases we had studied.  The almost invariant answer would be: “None.”

While little emphasized, this is not trivial.  Torts is judge-made law, crafted from real experience (OK, set aside Palsgraf).  Tort plaintiffs seldom wake the morning of their event looking to wind up in a lawsuit.  Defendants usually didn’t sign up for the job, either. 

Torts arise from life experiences.  Those experiences (if untoward) are ultimately arrayed before a judge who must make sense of them, and attempt to craft a rule and remedy to resolve the problem.  Those judge-crafted rules are either good or bad.  If good the rule usually stands the test of time, helping others either regulate their own behavior, or at least assure predictable results.  If the rule is bad, over time its flaws are exposed and the rule can be modified or completely rejected.  This is done by appeals courts, without the inertia of a prior legislative enactment.

I would emphasize humanity’s imperfections, and the law’s efforts to deal with them.  I would, then, try to show the Common Law’s flexibility, as opposed to the rigidity of statutes.

http://lawprofessors.typepad.com/tortsprof/2006/08/rosenbaum_commo.html

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