2000 SYNTHETIC COMMON LAW fallible, judges. A common law judge might adhere stubbornly to the view that if a statute(or perhaps a prior case)does not strictly cover the terms of a transaction, then an injured party to that transaction has no claim. Common law rules are fraught with contradictions and ambiguity, and, because they depend upon a limited number of specifie cases, necessarily contain gaps There has been vigorous academic debate about the merits and flaws of common law. This Part critiques and updates some of the most persuasive arguments for and against common law adjudication In some sense. this part seeks to understand whether we should laugh or cry in response to Holmess story. Is the story funny because of its implausibility, the assumption being that the common law is fair and efficient? Or is the story upsetting because it seems all too plausible, the implication being that the common law is neither fair A. The Case for Common Law In the modern regulatory state, dominated by federal statutes and administrative rules, it is easy enough to relegate the common law to the role of historical nicety. From the thirteenth century until recently common law was the primary source of law in the United States and England, and was revered by scholars and practitioners. 8 In modern society, it assumes a lesser role. Notwithstanding the fact that much of law school still involves the study of common law topics, many legal commentators, scholars, and practitioners have abandoned the common law in favor of statutes, including model statutes, and private law, including model and uniform laws. In a few areas of rapidly evolving technology, common law is experiencing a renaissance, with some scholars advocating common law adjudication as a higher-speed alternative to the often-sluggish modern administrative state Judge Learned Hand, drawing from Blackstone, described the common law as"a monument slowly raised, like a coral reef, from the which the plaintiff drank from a bottle containing a decomposed snail"could I characterized as a opaque bottle of ginger beer, an opaque bottle of beverage, a bottle of beverage, a container of chattels for human consumption, a chattel, or a thing. EISENBERG, supra note 2, at 54(citing MAlister(or Donoghue)v. Stevenson, [ 1932] L R. App. Cas. 562(H.L. 1932)) In his defense of common law regimes, Melvin Eisenberg has stated that ar application and extension of common law is justified when it is both socially congruent and systemically consistent. See EISENBERG, supra note 2, at 68. These tifications, to the extent one believes they are important, place additional imitations on the power of common lav i Numerous commentators have described the history of common law adjudication, a topic that is well beyond the scope of this article. See, e.g., I WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 194-350(7 ed. 1956)(describing the early system of comm See infra Part Il. B. Moreover, self-interested judges, lawyers commentators too often have supported the common law with assump nd faith more than argument or analysis, making it even easier for opponents arguments in favor of common law adjudication. Of course, the primary beneficiaries f a common law-dominated legal system are lawyers and judges, so it is no surprise hat both See infra notes 57-62 and accompanying text. 2I Blackstone stressed that the adherence to common law notions of stare decisis required that courts adhere to precedent and make changes slowly over time or it is an established rule to abide by former precedents, where the same points2000] SYNTHETIC COMMON LAW 5 fallible, judges. A common law judge might adhere stubbornly to the view that if a statute (or perhaps a prior case) does not strictly cover the terms of a transaction, then an injured party to that transaction has no claim. Common law rules are fraught with contradictions and ambiguity, and, because they depend upon a limited number of specific cases, necessarily contain gaps.17 There has been vigorous academic debate about the merits and flaws of common law. This Part critiques and updates some of the most persuasive arguments for and against common law adjudication. In some sense, this Part seeks to understand whether we should laugh or cry in response to Holmes’s story. Is the story funny because of its implausibility, the assumption being that the common law is fair and efficient? Or is the story upsetting because it seems all too plausible, the implication being that the common law is neither fair nor efficient? A. The Case for Common Law In the modern regulatory state, dominated by federal statutes and administrative rules, it is easy enough to relegate the common law to the role of historical nicety. From the thirteenth century until recently common law was the primary source of law in the United States and England, and was revered by scholars and practitioners.18 In modern society, it assumes a lesser role. Notwithstanding the fact that much of law school still involves the study of common law topics, many legal commentators, scholars, and practitioners have abandoned the common law in favor of statutes, including model statutes, and private law, including model and uniform laws.19 In a few areas of rapidly evolving technology, common law is experiencing a renaissance, with some scholars advocating common law adjudication as a higher-speed alternative to the often-sluggish modern administrative state.20 Judge Learned Hand, drawing from Blackstone,21 described the common law as “a monument slowly raised, like a coral reef, from the which the plaintiff drank from a bottle containing a decomposed snail “could be characterized as a opaque bottle of ginger beer, an opaque bottle of beverage, a bottle of beverage, a container of chattels for human consumption, a chattel, or a thing.” EISENBERG, supra note 2, at 54 (citing M’Alister (or Donoghue) v. Stevenson, [1932] L.R. App. Cas. 562 (H.L. 1932)). 17 In his defense of common law regimes, Melvin Eisenberg has stated that an application and extension of common law is justified when it is both socially congruent and systemically consistent. See EISENBERG, supra note 2, at 68. These justifications, to the extent one believes they are important, place additional limitations on the power of common law. 18 Numerous commentators have described the history of common law adjudication, a topic that is well beyond the scope of this article. See, e.g., I WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 194-350 (7th ed. 1956) (describing the early system of common law jurisdiction). 19 See infra Part II.B. Moreover, self-interested judges, lawyers, and commentators too often have supported the common law with assumptions and faith more than argument or analysis, making it even easier for opponents to reject arguments in favor of common law adjudication. Of course, the primary beneficiaries of a common law-dominated legal system are lawyers and judges, so it is no surprise that both groups historically supported the regime. 20 See infra notes 57-62 and accompanying text. 21 Blackstone stressed that the adherence to common law notions of stare decisis required that courts adhere to precedent and make changes slowly over time: “For it is an established rule to abide by former precedents, where the same points