Blackstone's Tower: The English Law School - College of Social ...

The Law Library
in a book entitled A Common law for the Age of Statutes, that
American courts ought to have the power to modify legislative
rules, especially older statutes, as they do to modify the common
law. 21 Whether or not one interprets this as a rearguard action by
a representative of the common law tradition, it is symptomatic of
recent belated attempts by case-trained academic lawyers to come
to terms with the predominant legal form of our age.
LAW REPORTS
"The reports of cases since the middle of the last century ought, in most
instances, to be read in course, and they will conduct the student over
an immense field of forensic discussion. They contain that great body
of the commercial law, and of the law of contracts, and of trusts, which
governs at this day. They are worthy of being studied even by scholars
of taste and general literature, as being authentic memorials of the business
and manners of the age in which they are composed. Law reports
are dramatic in their plan and structure. They abound in pathetic incident,
and displays of deep feeling. They are faithful records of those 'little
competitions, factions, and debates of mankind' that fill up the principal
drama of human life; and which are engendered by the love of power,
the appetite for wealth, the allurements of pleasure, the delusions of
self-interest, the melancholy perversion of talent, and the machinations
of fraud. They give us the skilful debates at the bar, and the elaborate
opinions on the bench, delivered with the authority of oracular wisdom.
They become deeply interesting because they contain true portraits of
the talents and learning of the sages of the law."
James Kent. 22
"Case law is law found in decided cases and created by judges in the
process of solving particular disputes. Case law in some form and to
some extent is found wherever there is law. A mere series of decisions
of individual cases does not of course in itself constitute a system of
law. But in any judicial system rules of law arise sooner or later out of
such decisions of cases, as rules of action arise out of the solution of
practical problems, whether or not such formulations are desired, intended
or consciously recognized. These generalizations contained in, or
built upon, past decisions, when taken as normative for future disputes,
create a legal system of precedent. Precedent, however, is operative
before it is recognized. Toward its operation drive all those phases of
human make-up which build habit in the individual and institutions in
the group: laziness as to the reworking of a problem once solved; the
time and energy saved by routine, especially under any pressure of business;
the values of routine as a curb on arbitrariness and as a prop of
weakness, inexperience and instability; the social values of predictabil-
98