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FALL 2016

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Lecture Topic 2: Common Law

General: the United States as a common law legal system

Legal scholars and commentators often characterize the legal system of the United States as a common law legal system. Like any generalization, this characterization is an over simplification. It is, however, true that large areas of substantive law in the United States are based on the common law. The common law is heavily supplemented by statutory law in the United States. In some cases this statutory law merely codifies the rules developed under the common law. In other cases, the statutory law overturns or modifies a common law rule. This chapter describes various aspects of the common law and the common law legal tradition, concluding with a brief comparison of a common law system to a civil law system and some historical observations. It should answer the questions: what is generally meant by the common law and what is the common law tradition?

Scope of the common law

The common law today is primarily substantive law rather than procedural law. As substantive law, the common law governs relationships between citizens in subject matter areas such as contract law, property law, marriage and tort law. It also governs relationships between the citizen and the state by setting forth a system of common law crimes for which the state might punish a citizen. By characterizing the common law as “substantive law” I do not mean to diminish the impact that ancient forms of procedure had on shaping the content of the substantive rules.

The common law never purported to be a complete system of law which governed all aspects of social life. In England, where the common law developed, the common law operated alongside other legal systems such as canon law, admiralty law and the law merchant.

Because the common law historically operated within a strict system of pleading which recognized limited remedies, litigants often felt that the result produced by a common law court did not accomplish justice. Accordingly, a parallel court system, known as the court of equity, developed in which a litigant either might seek a reprieve from a harsh result produced by the common law or might seek a remedy that was not available for a common law court to render. Historically, common law courts only had authority to render money judgments. One had to go to a court of equity to obtain an injunction or the remedy of specific performance.

In the United States, federal courts and most state courts sit with jurisdiction as both common law courts and courts of equity. This allows the courts to apply both common law and equity in rendering a decision and fashioning a remedy.

Characterized by an absence of codification and reliance on prior judicial decisions

The most salient feature of the common law system is that, for the most part, the common law is not codified. Some might say that the common law is “judge made law” rather than law passed by a legislature, as a statute or part of a code. One might hesitate to accept the full implications of the phrase “judge made law” because it suggests a certain unbounded freedom to make up the law in whatever fashion suits the fancy of a particular judge. This would be to overstate the power of the common law judge (about which more below). However, the common law is found in the pages of opinions delivered by judges in the cases which they decide. At least in that narrow sense, common law is judge made law.

What we can say safely about a pure common law legal system is that it possesses no comprehensive compilation of legal rules and statutes passed by a legislature. Instead, the legal rules of decision to be applied in a new case generally are reflected in prior judicial decisions of the common law courts. This means that the principles for decision in a new case are to be found in “precedent”—prior judicial decisions rendered in previously decided cases with similar facts—rather than in a statute or a code book.

Reliance on precedent as requiring publication of judicial decisions

Because of its reliance on prior judicial decisions as a source of substantive law, a system of common law functions best when judges render decisions in the form of written legal opinions or orders in which they describe the facts of the case and explain the basis for decision (often called the ratio decidendi). Then, these decisions can be collected and preserved in books for future reference by litigants, lawyers and judges. This practice of publication assures that the law is generally available to any interested party. This is exactly what we find in the United States today. The decisions of the federal and state courts are collected in volumes known as “reporters” in which opinions are published. Lawyers and judges conduct research in a library which contains the reporters to identify past decisions potentially relevant to a current case. Increasingly, this research is conducted using electronic reporting services such as Westlaw and Lexis.

It is worth noting that today courts have the option of electing to publish an opinion or to designate the opinion as not for publication. The later such opinions are known as “unpublished” opinions. In many jurisdictions, an unpublished opinion is specifically designated as not suitable for citation as a precedent or that it may be cited as mere persuasive authority (but not binding authority). This is true even if these opinions are collected and published by some reporting service. In effect, because of the ubiquity of reporting services and electronic search engines, the designation of an opinion as “unpublished” really amounts to a designation by the court that the particular opinion is not suitable for use as authority in legal arguments. For all practical purposes, even unpublished opinions are available. These practices reflect the important relationship between the development of a system of law via precedents and publication. [Read INTRO TEXT, Form of Reported Cases at pp. 53-55, Finding Case Law at pp. 55-58.]

Historically, the practice of collecting judicial decisions in reporters started in the late sixteenth century in England with Lord Coke. In his time, Lord Coke personally attended most of the arguments in important legal cases (whether as a participant or an observer) in London. Lord Coke himself wrote up reports which described his understanding of the facts of each case, the legal arguments presented and the basis for decision based on his personal observations of the proceedings. Initially, he did this primarily to further his own law practice because it was a substantial aid to memory. However, the tool became so powerful that he published his notes in volumes that came to be known as “Coke's Reports” and sold them commercially. For centuries, these reports were considered to be the gold standard for a legal citation in a common law court. One occasionally still finds citations to Coke's Reports in decisions published today. Of course, for centuries before Lord Coke started reporting on what he saw at Westminster, the English common law relied on simple custom and memory as the basis for decision. The formal system of reporting instituted by Lord Coke allowed for a more professional and detailed style of argumentation based on appeal to precedent and prior decision.

Note that Lord Coke started by reporting on what he witnessed in court. This is because the arguments presented and the decisions of the courts in that time were all conducted and delivered orally. That is to say, Lord Coke presented his view of the important facts and the basis for decision. This concentrated a great deal of power in the hands of Lord Coke. Some have suggested that he may have structured and edited his presentation in accordance with his own political and personal views. Today, this sort of third party filter does not exist because the judges write their own opinions. In this sense, the reporters are no longer true third party reports but instead are the actual words selected by the judges themselves for publication.

Systemic benefits of relying on precedent

It is the overriding sense in a common law system that justice requires that like cases should be treated alike—i.e. should have the same outcomes. The idea that new cases should be decided in the same way as prior similar cases is sometimes called the “doctrine of stare decisis.” This doctrine has several perceived systemic benefits. The first benefit is the promotion of equality. It insures that litigants are treated equally before the law. The second benefit is the promotion of predictability. Potential litigants might examine prior decisions as a guide to how the court might apply the law in a new case. To be sure, the parties may still need a trial to determine the facts of a new case but, assuming the facts are agreed, the legal outcome may be predicted. The third benefit of the doctrine of stare decisis is that of judicial economy. If work done in prior cases to determine the shape and structure of the law is applied in future cases, courts do not need to “reinvent the wheel” each time a new case is presented for decision. The fourth benefit of following prior precedent is that it confers a certain amount of respect on the work of prior judges and, perhaps, promotes respect for the legal system more generally. [Read INTRO TEXT, The Judicial Function at pp. 58-59.]

Method of legal reasoning in a system relying on precedent

As no two sets of facts are identical, common law legal reasoning places a premium on the ability of lawyers and judges to argue by analogy and to identify similarities and differences in facts which have legal significance. If a precedent is bad for the legal position of a plaintiff, for example, the lawyers for the plaintiff will attempt to distinguish the bad precedent from the case at bar by pointing out differences in the facts of the two cases which should dictate a different outcome. In contrast, the defendant will argue that the differences in the facts of the two cases are incidental or irrelevant and should have no legal significance. Thus, the present case should be decided in the same fashion as the prior case—which would result in a loss for the plaintiff.

In some cases, there may not be a prior case which by analogy might persuasively form the basis for a decision in a current case. This situation is sometimes referred to as “a case of first impression.” When confronted with a case of first impression, the judge must fall back on general principles of law, intuitions of justice and fairness, his or her life experiences and other factors to decide the issue. Even though, in fact, a multiplicity of factors likely influence the decision of a judge in a case of first impression, judges often do not acknowledge all of these factors but instead explain the outcome reached as a matter of more neutral and impersonal logic. Of course, once decided, a new precedent has been created for reference in future cases. If the approach taken in the case of first impression is generally accepted in future cases, then it becomes an increasingly authoritative source of law for future similar cases.

Because, in a common law system, the opinions of judges form the source material from which substantive law is extracted, the lawyer must develop the skill to analyze legal opinions. This requires that the reader of an opinion be able to isolate and distinguish the holding of a case from other information and pronouncements contained in the opinion. Thus, though an opinion might be many pages in length, often the key legal point or holding of the case may be distilled down to a single sentence or two. This distillation is often casually referred to as “what the case stands for.” Other statements in an opinion that are not deemed strictly relevant to the legal issue for decision are referred to as “dicta” in the opinion. Sometimes lawyers argue over whether a statement in an opinion constitutes its “holding” on the law or instead constitutes mere “dicta.”

Students should note that the United States legal system relies on precedent to decide questions raised by the common law, but precedents and reasoning by analogy is used to interpret other legal materials, including statutes and the U.S. Constitution

Important role of the judge in a system that relies on precedent

Though litigants argue for application of competing precedents to be applied in the decision of each new case, the presiding judge ultimately decides which precedents are applicable. Moreover, in novel cases the presiding judge will decide and set forth the ratio decidendi in a case of first impression. As a result, judges have an enormous role in shaping the contours of law in a common law system. It is in this sense that the common law may be said to be “judge made.” However, though judges must sometimes select among competing potentially applicable precedents, they do see themselves as bound to follow existing precedent when such can be found. Linguistic usage and common sense set boundaries on how a court may apply precedent by analogy. Opinions are intended to be persuasive arguments which convince the litigants, as well as the legal community more generally, of their correctness. If the argument presented by a lower court is not persuasive, it may be reversed on an appeal. A reversal on appeal is, in a strong sense, a rebuke of the judge who set forth the overturned reasoning. This rebuke is a public one because the opinion in the appeal will be published (or, at the very least, publicly available). No judge likes to be reversed by a higher court. Similar arguments apply to explain the care with which a judge will decide a case of first impression.

Moreover, since at least the time of Coke's Reports through the end of the 19th century, judges did not generally view themselves as making law when they decided a case—even a case of first impression. Rather, they viewed themselves as discovering and revealing the state of an existing and immutable natural law that existed as a part of the world. Much like geologists examine specimens and make deductions about the state of the world and its past history, judges examined precedents to deduce the correct result for the case before them. Law was seen as akin to a science in which the past legal decisions were merely the data from which extrapolations might be drawn. Importantly, the participants in the system believed that the common law method produced a correct result in a case. Judges did not perceive of their role as merely selecting from competing policy options. This view about the nature of the law and the function of the judge within the legal system is sometimes referred to as “legal formalism.” A legal formalist would tend to view the legal system in isolation from society more generally. The law was a stand alone system in which logic was applied to precedent to arrive at a correct result, ideally without extraneous considerations from social theory, politics or otherwise.

The rise of the philosophical doctrine of pragmatism in the United States in the late 19th century and early part of the 20th century coincided with the evolution of the doctrine of legal realism which challenged the view of legal formalism. A legal realist would not believe that the law is based in immutable natural law which dictates a unique and correct legal rule for a particular situation. Logic applied to past decisions did not hold the key to correctly deciding individual cases or shaping the contours of the law in cases of first impression. Rather, the legal realist would view the law as a man made social institution which should take shape based on rational considerations of policy best for the smooth and orderly functioning of just society. Though few legal theorists today accept all aspects of the classical legal realist tradition, the legal realists observations about the true nature of the law and the role of the judge in the legal system is reflected in more modern theories. This judicial philosophy is echoed in followers of doctrines such as law and economics, for example, which holds that legal rules should take shape based on considerations of economic efficiency. Thus, according to a law and economics theorist, the correct legal rule is the rule that minimizes transaction costs.

A legal formalist, while acknowledging the important role of judges in the legal system, would not see judges as “making the law” in any strong sense. In contrast, a legal realist or follower of one of legal realism's progeny, would envision a much larger role for input by judges on the shape and contours of the law. Even a legal realist would acknowledge, however, that in its practical functioning a judge does not have full carte blanche to write the law however he or she sees fit. At a minimum, the judge must still work within a framework that pays lip service to precedent to justify a present decision in the fabric of the past.

Other forms of authority in a common law system

In a common law system, the primary and best source of authority on which judges rely (and from which lawyers craft arguments) is prior case law precedent. However, in many cases, particularly those in which no binding precedent can be found or in which no prior case law of any kind appears particularly relevant to the decision at hand, a lawyer may support his or her argument for a particular result on what is known as “secondary authority.” Secondary authority may come from a variety of sources, such as law dictionaries, encyclopedias, treatises, law review articles and restatements of law. Though it is controversial in certain types of cases (particularly in Constitutional law), sometimes lawyers and judges will refer to the outcome under foreign law to lend support to an argument. [Compare Ilya Shapiro, The Use and Misuse of Foreign Law in U.S. Courts (Cato Institute May 19, 2010 ; Richard Posner, No Thanks, We Already Have Our Own Laws, Legal Affairs (July|August 2004) with Austen L. Parrish, Storm in a Teacup: The U.S. Supreme Court's Use of Foreign Law, 2007 U. Ill. L. Rev. 638 (2007) ; In a brief prepared for a court, the brief typically will contain a table of authorities, listing the relevant cases first, followed by a listing of secondary authority to which reference is made in the argument. [Read INTRO TEXT, Chapter 8, Secondary Authority, at pp. 91-97.]

Adoption of the common law by the states

The common law in the United States is state law. After the original 13 colonies declared their independence from England, these former colonies (now states) passed statutes which formally adopted most of the common law of England. The general approach was to adopt the common law as it existed prior to one of three distinct times: the time of the formation of the first permanent English settlement in the Americas; the time immediately prior to the declaration of independence; or the time immediately prior to passage of the statute incorporating English common law. These statutes are known as reception statutes.

Here is an example of a reception statute enacted by Virginia.

Reception Statute of Virginia (1776)

“And be it further ordained, That the common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the first, and which are of a general nature, not local to that kingdom, together with the several acts of the General Assembly of this colony now in force, so far as the same may consist with several ordinances, declarations, and resolutions of the General Convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony.”

You can see the importance of the timing of the reception in the Virginia statute by the reference to the fourth year of the reign of King James the first. It was at that time that time, in 1607, that Jamestown was founded by private charter as an English settlement. (Virginia's private charter was revoked in 1624 and it was formally made a colony of England.) The Virginia legislature did not receive the common law as it existed at the time of declaration of independence in 1776. The concept seems to be that reception of the laws of England was appropriate before Virginia existed but once Virginia was formed it had its own system of tribunals and courts in which a Virginian brand of the common law might develop.

In contrast, other states adopted reception statutes which appear to incorporate the English common law as it existed immediately prior to adoption of the statute. Here is an example from North Carolina.

Reception Statute of North Carolina (1778)

“All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.”

New York law provides an example of incorporation of English common law prior to the American Revolution.

Reception Statute of New York (1786)(based on article 35 of NY Constitution, 1777)

“Whereas by the Constitution of this state it is declared that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the Legislature of the colony of New York, as together did form the law of the said colony, on [19 April 1775] (except such parts thereof as are by the said Constitution abrogated) shall be and continue the law of this state; subject to such alterations and provisions as the Legislature of this state shall, from time to time, make concerning the same. And whereas such of the said statutes as have been generally supposed to extend to the late colony and to this state, are contained in a great number of volumes [a commission is established to gather together and put before the legislature the appropriate statutes].”

In some cases, the act of reception is included in a state constitution rather than in a statute passed by the legislature. Here is example of including the act of reception in a state constitution from Delaware.

Reception Provision of the Delaware Constitution, art. 25 (1776)

“The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this state, shall remain in force unless they shall be altered by a future law of the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in this Constitution and the declaration of rights, &c., agreed by this convention.”

The District of Columbia is not a state. It was formed from territory acquired from Virginia and Maryland. The U.S. Constitution gave Congress complete legislative authority over the district but it declined to fashion its own reception statute. Rather, when Congress provided for the law applicable to courts operating within the District of Columbia it initially opted to rely on the law of the states from which territory the District was formed.

Reception statute for the District of Columbia, 1801

“. . . the laws of the state of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia, which was ceded by the said state to the United States, and by them accepted for the permanent seat of government; and that the laws of the state of Maryland, as they now exist, shall be and continue in force in that part of the said district, which was ceded by that state to the United States, and by them accepted as aforesaid.”

By current statute, the District of Columbia incorporates the law of Maryland as it existed in 1801 (but not the law of Virginia).

As states were later admitted to the Union, they too adopted English common law from one time frame or another. The body of reception statutes generally form an inconsistent mess that can be quite confusing. A summary of state reception statutes and constitutional provisions appears in Joseph Fred Benson, Reception of the Common Law in Missouri: Section 1.010 as Interpreted by the Supreme Court of Missouri, 67 Mo. L. Rev. 595, 607 (2002) (including summary information about state law in an appendix). [ http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3528&context=mlr ]

The above information should suggest to you a potential complexity. Note that each of the several states might use a somewhat different form of the common law. These differences arise for three distinct reasons. First, the states have adopted the English common law using different cut-off dates for reception. As the English common law developed and evolved between the earliest and the latest dates for reception, the date of reception impacts the structure of the substantive law incorporated. Second, from the date of reception, the common law will continue to evolve within the court system of each state; however, there is no assurance that this evolution will be uniform across the various state court systems. Third, in all cases the states indicate that their legislatures may modify the common law by statute. There is no assurance that modifications to the common law will be uniform across the several states.

In fact, the common law is not uniform in all respects across the several states for all of these above listed reasons. This is, of course, a problem created by the multiple state court systems that are a byproduct of the federal system of government in the United States.

Though we will not study it in detail, for completeness it bears noting that not all territories subject to the jurisdiction of the United States have received the English common law in one form or another. The state of Lousiana has incorporated large parts of the civil code in its substantive law, as has the territory of Puerto Rico.

No federal common law

Criminal law

There is no federal common law of crimes. Even though there is a federal court system that operates in parallel with the state court systems within which a federal common criminal law might be developed, early in the history of the United States, the U.S. Supreme Court held that the federal courts did not have the power to develop a federal common law of crimes. United States v. Hudson and Goodwin, 11 U.S. 32 (1812). The Court held that “[t]he legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.” The absence of federal power means at least several things. First, federal courts may not conduct trials of defendants for committing common law crimes. Second, it follows from this that the federal courts may not contribute to the development of common law crimes. Third, Congress must specify by legislation the extent of federal court jurisdiction over crimes. Thus, federal criminal law is exclusively statutory both in its form and administration.

Civil law

Though early in the nation's history the Supreme Court made clear that the federal courts did not have the power to deal with the common law of crimes, the history with respect to the civil aspects of the common law is more complicated.

Swift v. Tyson, 41 U.S. 1 (1842), was a case brought in diversity in the Circuit Court for the Southern District of New York on a bill of Exchange accepted in New York in which the Supreme Court of the United States determined that United States federal courts hearing cases brought under their diversity jurisdiction pursuant to the Judiciary Act of 1789 must apply the statutory law of the states when the state legislature of the state in question had spoken on the issue but did not have to apply the state's common law in those cases in which that state's legislature had not spoken on the issue. The Court's ruling meant that the federal courts, when deciding matters not specifically addressed by the state legislature, had the authority to develop a federal common law.

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), is a landmark decision by the Supreme Court of the United States in which the Court held that federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction. In reaching this holding, the Court overturned almost a century of federal civil procedure case law, and established the foundation of what remains the modern law of diversity jurisdiction as it applies to United States federal courts. [Read INTRO TEXT, Law Applied in the Federal Courts at pp. 50-52.]

Binding versus persuasive precedent

Precedent can be binding or merely persuasive. Binding precedent exists when a decision comes from a court that is either the same court in an earlier decision or a higher court in a direct supervisory or review role to the court considering the question. For example, a prior decision of the Court of Appeals in New York would be binding precedent on a trial court or a lower appellate court in the state of New York. A decision of the Supreme Court of California, in contrast, could be merely persuasive authority for a question before a trial court or a lower appellate court in the State of New York. [Read INTRO TEXT, Techniques in the Use of Precedent, pp. 59-65, Two Puzzles in Precedent, pp. 65-68.]

Adversarial system rather than an investigative system and use of a jury

Two other features of the common law tradition are worth noting. In a common law court, the judge functions much like a moderator or an umpire, rather than an investigator. The theory is that the truth will emerge in an adversarial system in which two opposing parties contest to have their view of justice accepted.

In a common law tradition, it is typical for a jury of ordinary citizens (i.e. people without any particular legal training or expertise) determine the facts of the case and to render a verdict based upon instructions from the judge as to the applicable law. [Read INTRO TEXT, Characteristics—Trial at pp. 115-120.]

Importance to introductory legal studies in the United States

The first year of study for a JD degree in a United States law school focuses extensively on common law materials. Indeed, a majority of the required courses focus on the common law. A typical first year course schedule would include courses in contracts, torts, property, criminal law, civil procedure and constitutional law. Of these subjects, each of contracts, torts, property and criminal law include large components of the common law. Indeed, these introductory courses could be taught using exclusively common law materials. It is more typical, however, to teach such courses using a combination of common law materials and statutory materials because in the modern systems of laws in the United States the operative substantive law is a combination of the older, traditional common law, as supplemented by more modern statutory compilations.

Reliance on precedent gives rise to the technique of briefing cases

One exercise often repeated by law students is to “brief” a case. In a case brief, the student is supposed to summarize the facts of legal significance to the decision, the legal issue to be decided, the applicable legal rule or rules to be applied, and the holding. It is usual that a large portion of the cases studied and briefed in law school are cases which present issues of first impression. This is because those cases are the ones that set forth a new legal principle which added to the body of substantive law. [Read INTRO TEXT, Chapter 2, Legal Education at pp. 17-25.]

Comparison with civil law

Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.

Historical considerations

Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the Middle Ages and was applied within British colonies across continents. The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, that sought to reform their legal systems in order to gain economic and political power comparable to that of Western European nation-states.

To an American familiar with the terminology and process of our legal system, which is based on English common law, civil law systems can be unfamiliar and confusing. Even though England had many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition developed differently from that of the continent for a number of historical reasons, and one of the most fundamental ways in which they diverged was in the establishment of judicial decisions as the basis of common law and legislative decisions as the basis of civil law. [Read INTRO TEXT, Chapter 1, Historical Background at pp. 9-16.]

[For an historical analysis of the origins of the common law rules of liability as being grounded in a variety of legal traditions, and centered on the idea of vengeance and identification of the person or thing against which revenge might properly be taken, see CL TEXT, Lecture I.--Early Forms of Liability. This reading is important background but if you are short of time, focus on the materials in the above Lecture Topic 2 and the related citations to INTRO TEXT before reading CL TEXT.]

Last Modified: Wednesday, 13-Jul-2016 21:36:08 EDT