Manual Introduction to the Laws of the United States in the 21st Century (2016 Edition)

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Where a tort is rooted in common law, all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death. In the United States, the power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution, Article III sections 1 and 2: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority Madison , 5 U. Later cases interpreted the "judicial power" of Article III to establish the power of federal courts to consider or overturn any action of Congress or of any state that conflicts with the Constitution.

The interactions between decisions of different courts is discussed further in the article on precedent. The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits.

District court decisions are not binding precedent at all, only persuasive. Most of the U. Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc , and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court.

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Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled. In the jurisdictions of England and Wales and of Northern Ireland , since , the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts; it is the final court of appeal for civil law cases in all three of the UK jurisdictions but not for criminal law cases in Scotland. From to , this power lay with the House of Lords , granted by the Practice Statement of Canada's federal system, described below , avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.

The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties especially commercial parties can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency.


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As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply.

In contrast, in jurisdictions with very weak respect for precedent, [74] fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides. In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance unless the written law is very clear and kept updated and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties.

This is the reason [75] for the frequent choice of the law of the State of New York in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States. Somewhat surprisingly, contracts throughout the world for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated.

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Because of its history as the United States' commercial center, New York common law has a depth and predictability not yet available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware corporate law , and American contracts relating to corporate law issues merger and acquisitions of companies, rights of shareholders, and so on.

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The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result. Likewise, for litigation of commercial disputes arising out of unpredictable torts as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph , certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases. For example, London is considered the pre-eminent centre for litigation of admiralty cases.

This is not to say that common law is better in every situation.

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For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures—but, conversely, that tends to make the statute more difficult to read the United States tax code is an example. The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books.

The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. The doctrine of precedent developed during the 12th and 13th centuries, [82] as the collective judicial decisions that were based in tradition, custom and precedent.

The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases as distinct from criminal cases , was devised as a means of compensating someone for wrongful acts known as torts , including both intentional torts and torts caused by negligence , and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system ; this is also a development of the common law.

The early development of case-law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books , of which the first extant was published in , the same year that Bracton died. In , Henry II became the first Plantagenet king.

Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims.

The jury reached its verdict through evaluating common local knowledge , not necessarily through the presentation of evidence , a distinguishing factor from today's civil and criminal court systems. Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country.

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His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis also commonly known as precedent developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another.

Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was at least in theory, though not always in practice common throughout the whole country, hence the name "common law". Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical church courts, brought him and England into conflict with the church, most famously with Thomas Becket , the Archbishop of Canterbury.

The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes see also Constitutions of Clarendon. The English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest.

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Its judges sat in open court in the Great Hall of the king's Palace of Westminster , permanently except in the vacations between the four terms of the Legal year. Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation.

Since the 12th century, courts have had parallel and co-equal authority to make law [87] —"legislating from the bench" is a traditional and essential function of courts, which was carried over into the U. However, the view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. In England, judges have devised a number of rules as to how to deal with precedent decisions. The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different.

Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct. By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent. Often, they were clerics trained in the Roman canon law. Signs of this can be found in Blackstone's Commentaries on the Laws of England , [92] and Roman law ideas regained importance with the revival of academic law schools in the 19th century.

The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice Edward Coke , in his treatise, Institutes of the Lawes of England in the 17th century. The next definitive historical treatise on the common law is Commentaries on the Laws of England , written by Sir William Blackstone and first published in — A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts i. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state.

All U. Other examples of reception statutes in the United States, the states of the U. Yet, adoption of the common law in the newly-independent nation was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception. The Jeffersonians preferred a legislatively-enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process.

The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly-independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials.

Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer later president John Adams complained that he "suffered very much for the want of books".