By Ted Normand
The courts in this country have spent decade after decade—sometimes hundreds of years—setting out rules of decision in resolving common law claims. Considering both process and policy, can we say from state to state whether the courts have made good common law? The question implicates such broad disciplines as legal history, legal reasoning, law and economics, and the philosophy of law. None seems to answer both parts of the inquiry, however, or to work out how the parts might relate to one another. Some scholars and judges might even regard the question as impertinent. Where common law is longstanding and inertial, what basis is there for asking if the courts have followed the right “process” or made sound “policy”? This Article seeks to reconcile such perspectives in evaluating a given area of common law jurisprudence under distinct, model criteria.