From: stephen@sprunk.org   
      
   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.   
      
   S   
      
   --   
   Stephen Sprunk         "God does not play dice."  --Albert Einstein   
   CCIE #3723         "God is an inveterate gambler, and He throws the   
   K5SSS        dice at every possible opportunity." --Stephen Hawking   
      
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