From: ce11son@yahoo.ca
On Tue, 13 May 2014 19:29:41 -0500, Stephen Sprunk
wrote:
>On 11-May-14 02:20, Charles Ellson wrote:
>> On Sat, 10 May 2014 23:01:43 -0500, Larry Sheldon
>> wrote:
>>
>>> On 5/10/2014 10:11 AM, Stephen Sprunk wrote:
>>>> On 03-May-14 18:35, Larry Sheldon wrote:
>>>>> On 5/3/2014 2:58 PM, Stephen Sprunk wrote:
>>>>>> On 03-May-14 09:23, Adam H. Kerman wrote:
>>>>>>> Stephen Sprunk wrote:
>>>>>>>> When SCOTUS unilaterally voided federal general common
>>>>>>>> law in 1938, "the peace" went too. As a (mostly) civil
>>>>>>>> law system, their agents are charged with enforcing "the
>>>>>>>> law", hence "law enforcement officer".
>>>>>>>
>>>>>>> Huh? I thought common law, as a general concept, was not
>>>>>>> incorporated by the Founding Fathers by choice, which is
>>>>>>> why specific areas of common law they wished to retain were
>>>>>>> enacted into law in the First Congress.
>>>>>>
>>>>>> How could a legislature "enact" common law? Common law is
>>>>>> what courts create on their own when there is a lack of
>>>>>> statute law to follow.
>>>>>>
>>>>>> In the 1800s and early 1900s, the common law varied depending
>>>>>> on the people involved: for citizens of the same state, it
>>>>>> was state common law in state court, but for citizens of
>>>>>> different states, it was federal common law in federal
>>>>>> courts. In 1938, SCOTUS decided that this was a violation of
>>>>>> equal protection and the laws of the state where the case
>>>>>> originated (including common law, if applicable) should
>>>>>> control in diversity cases just as in non-diversity cases.
>>>>>>
>>>>>> There are still some instances where federal statute
>>>>>> explicitly preempts state law (including common law, if
>>>>>> applicable) even in non-diversity cases yet is so vague that
>>>>>> the federal courts have no choice but to create common law.
>>>>>> This drives "strict constructionists" nuts, but it's the only
>>>>>> practical solution until Congress improves the statute law.
>>>>>
>>>>> IANAL but to my understanding this is a gross misuse of the
>>>>> term "common law".
>>>>
>>>> That's what SCOTUS called it, and they're the authority.
>>>>
>>>>> I have seen definitions that include an element of "I dunno, we
>>>>> have always done it that way".
>>>>
>>>> That's part of it, but courts often encounter situations that
>>>> they've never had to face before and the statutes (if any even
>>>> exist) are unclear; the first such court will create new case law
>>>> to handle it, and other courts are expected to follow that
>>>> precedent. Eventually, that turns into custom.
>>>>
>>>>> com·mon law
>>>>>
>>>>> evolved law: the body of law developed as a result of custom
>>>>> and judicial decisions, as distinct from the law laid down by
>>>>> legislative assemblies.
>>>>
>>>> You're (deliberately?) missing the other part of that "and"
>>>> statement.
>>>
>>> What ever it is I am being accused of, I deny it.
>>>
>>> Some where I learned that "The Body of The Law" in the USA (I think
>>> that is my tern--but I am not sure and I am still not a lawyer and
>>> would deny it if I was) consists of part or components with names
>>> like:
>>>
>>> English law statutory law (comes in flavors like Federal, State,
>>> County or Parish, City, and such) Case law ("judicial decisions" in
>>> your definition) Common law (I guess "custom" in your definition)
>>
>> The 17th century settlers will have carried on using the law that
>> they had "back home" thus for practical purposes using English Law
>> but from that time onward there would no longer be a direct matching
>> to English Law due to separate development.
>
>In theory, the Colonies used English common law until independence, at
>which point they each "received" that common law as their own--and then
>promptly started making changes to it, each in slightly different ways.
> The US Govt also "received" that common law as its own, but SCOTUS
>(mostly) wiped that out in 1938, so it's (mostly) moot now.
>
In reality, it would have ceased to be "English" as soon as someone
added a domestic judgment.
>> This would result in some current law being traceable back to English
>> Law but the system is now essentially as separate as all other Common
>> Law systems.
>
>Well, the parts we haven't changed would still be traceable.
>
The parts you have changed sometimes return to their ancestral home
when the same reason for change arises, in some cases allowing a
thread of development making more than one return journey (or a bit of
a tour if it goes via other systems) over the centuries.
>In Roe v. Wade, both sides cited English common law from hundreds of
>years before the New World was even discovered! However, SCOTUS decided
>those precedents weren't compatible with our constitution (which is
>superior to common law) and created new common law that was in harmony
>with it.
>
>> Judicial interpretations have to be made with both Common Law and
>> statutes so from that POV "case law" is involved in both especially
>> when a particular matter does not fit entirely into one or the
>> other.
>
>There is no need for case law when the statute law is clear.
>
As probably applies to the majority of cases but legislators can't
anticipate every possible circumstance that could apply so case law
still exists to fill gaps, sort out anomolies etc.
>> "Custom and practice" (and/or "precedent") is effectively just being
>> consistent with decisions until there is a valid cancellation of an
>> older rule. Again it is part of both Common Law and statute law.
>
>There's also the doctrine of "stare decesis": justice requires
>consistent application of the law, so courts should follow precedent
>even when they would have reached a different conclusion in the current
>case if that precedent didn't exist. This effect weakens over time,
>though, as time allows them to better evaluate whether the precedent was
>truly just.
>
>S
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