James R. Maxeiner (University of Baltimore – School of Law) has posted Common Law is Not an Option (Chapter 2 of James R. Maxeiner, Failures of American Lawmaking in Historical and Comparative Perspectives, Cambridge University Press, Fall 2017 Forthcoming) on SSRN. Here is the abstract:
This is a prepublication print of Chapter 2 of the book Failures of American Lawmaking in Historical and Comparative Perspectives to be published in fall 2017 by Cambridge University Press. That book argues: (1) America through the first century of the republic sought a government of laws and not of precedents; and (2) that a government of laws requires that America develop modern methods of dealing with statutes such as are used in Germany.
Chapter 2 argues that allowing common law methods to dominate lawmaking is not a viable alternative to modern statutory methods. It contends that: (1) common law precedents cannot make a government of laws; (2) America’s common law is unknowable; and, (3) common law rules fail as rules of law.
Chapter 2 challenges common law myths that allow American legal professionals to think that common law methods are a viable alternative to statutory methods: (1) the myth that the United States is a country of common law; (2) the myth that common law is superior to statutory law in individualizing justice; (3) the myth that common law is superior to statutory law in adjusting law in time; (4) the myth that America’s judges have always freely made law; and, (5) the myth of English common law tutelage of American law.