proposed and final rules. This is important because administrative agencies do not
always realize the implications of their proposals. They rely on the public and those
agencies that come under their regulatory guidance to alert them to possible problems
through the feedback process.
3-5.
COMMON LAW, ANOTHER BASIC SOURCE OF THE LAW
a. Court Decisions Resolving Specific Controversies. Yet another basic
source of the law is common law, the principles that evolve from court decisions
rendered to resolve controversies. Many of the legal principles and rules applied by the
courts in the US are the product of common law that was developed in England and
later in the US The court's role is to resolve disputes. But in the process of deciding
individual cases, the courts interpret statutes and regulations. They determine whether
specific statutes and regulations are permitted by state or Federal constitutions. They
create common law when deciding cases that are not controlled by statutes,
regulations, or the constitution.
common law: a body of laws originating from Federal, state, and
local court decisions.
b. Precedent Usually Followed. In resolving specific controversies, courts, for
the most part, follow precedent. They follow the rules and principles applied in similar,
previously decided cases. However, the courts may recognize distinctions between
precedent and the current case, or they may conclude that a particular common law rule
is no longer in accord with the needs of society (due to changing values or priorities).
For example, the longstanding principle of charitable immunity gave nonprofit hospitals
virtual freedom from liability for harm to patients resulting from wrongful conduct. This
principle, which had been in effect for over 30 years, was eventually overruled by the
courts in state after state.
Section II: THE NATURE AND ROLE OF THE LAW
3-6.
THE NATURE AND ROLE OF THE LAW
a. Legal vs Ethical Standards. Through the law, society specifies standards
of behavior and the means to enforce those standards. In One L, Scott Turow's inside
account of life as a first-year student at Harvard Law School, a law professor warns his
student:" in learning rules, don't feel as if you've got to forsake a sense of moral
scrutiny. The law in almost all of its phases is a reflection of competing value systems."9
In this sense, the law seems much like ethics inasmuch as it is a reflection of conflicting
societal values.
MD0066
3-6