From: stephen@sprunk.org
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.
> 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.
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.
> "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
--
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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