We have discovered in our teaching of the law that general propositions are empty. We have discovered that students who come eager to learn the rules and who do learn them, and who learn nothing more, will take away the shell and not the substance. We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping up of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all. Without the concrete instances the general proposition is baggage, impedimenta, stuff about the feet. It not only does not help. It hinders.

Now, if the rules stated in the precedents were "the law" that determines the results in future cases, Case 3 would have to go the other way. The combination of the rules from Cases 1 and 2 would seem to require that Costello win. Case 2 states that a person who fraudulently acquires possession of property does not acquire ownership; Case 1 states that a person without ownership of property cannot transfer ownership to another. In Case 3, Abbott did not acquire ownership of the horse, under the rule in Case 2. By finding for Holliday, the court seems to ignore the rule stated in Case 1. It finds that Holliday owns the horse when Abbott did not. (There are many cases on the books that decide Case 3 for Holliday in jurisdictions that decide Cases 1 and 2 for Costello.)

Consequently, the common law process is not one of simply tracing the logical consequences of preexisting rules stated in the precedents. As Edward H. Levi put it, "(t]he rules change as the rules are applied. More important, the rules arise from a process which, while comparing fact situations, creates the rules and then applies them."

A basic principle of common law adjudication is that a judge is empowered to decide the case before the court and only the case before the court. A judge has no authority at common law to enact an authoritative general rule to govern parties and situations that were not before the court. Thus, the judge in Case 1 could not decide the outcome in Case 3, however broadly she may craft a rule to explain the decision in Case 1.