The cases which legal scholars analyse are a very minute proportion of the cases which are litigated in Court. A small portion of cases litigated in Court are reported. Only a very small proportion of those cases find their way into learned articles and the text books. Only a small portion of articles and text book footnoted cases are discussed in the main body of the work.
An analysis of all cases which come before the courts provides only a partial view on the operation of a rule. There are many situations in which a rule may be used by parties to adjust their conduct and regulate their differences, without resort to litigation, because the rule is clear.
Thus the cases discussed in academic discourses form an unrepresentative sample and most importantly take no account of the many situations in which a rule may have operated satisfactorily.
Law reform often proceeds largely on the basis of the law and how it operates in an unrepresentative sample of situations (the problem areas which are discernible). Rules and tests developed by the Courts will have and lead to problems and difficulties. All that can be expected of a rule functioning within a complex community consisting of individuals living in an uncertain environment, is that it works in a large majority of situations.
This is part of a wider problem. Academic writings criticise common law concepts, doctrines and principles. Criticism is accompanied by a demand for rules which are just and rational and which may easily be applied. This is often the spring board for law reform.
The simple reality is that in the context of complex human inter-action (each human being is different) in an uncertain environment, it is not possible to formulate rules which are logical, clear, precise and which can be applied to a variety of situations or all situations. Any rule will create problems.
Law Reform often misses out on the above factors.