From: ce11son@yahoo.ca
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. 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.
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.
"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.
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