We pride ourselves on being a nation governed by law—which most non-lawyers reasonably assume to be the statutes, rules and codes adopted by duly elected legislators or created by bureaucrats empowered by elected officials and the laws they passed.
In contrast to that expectation, I am amused, bemused and somewhat confused by the extent that “judge made common law” actually controls the disposition of contested issues. Three recent cases in the area of employment law illustrate my point; one deals with the “faithless servant” doctrine; a second with the “employee choice” rule; and a third with the “tangible expectancy test” – none of which are legislation-based.