The Ultimate Common Law Quiz

Common Law: Law Created by Judicial Precedent

• Common law is the body of law created by judges and quasi-judicial tribunals through written opinions.

• Common law is characterized by its reliance on precedent, which means that courts use past decisions to synthesize legal principles for future cases.

• Stare decisis, the principle that similar facts should yield similar results, is central to common law systems.

• Common law originated in the practices of English kings' courts following the Norman Conquest in 1066 and was spread by the British Empire to its colonies.

• Common law systems give great weight to judicial precedent, while civil law systems codify legal principles into codes and do not recognize judicial opinions as binding.

• One-third of the world's population lives in common law jurisdictions or mixed legal systems combining common law and civil law.

• Common law is distinguished from statutory law and regulations, which are laws adopted by the legislature and executive.

• Black's Law Dictionary distinguishes common law jurisdictions from civil law or code jurisdictions, which give less weight to judicial precedent.

• Before 1873, England had two court systems: courts of "law" and courts of "equity", which relied on common law principles of binding precedent.

• The term "common law" has many historical connotations, but the modern view is that it acquires force of law instantly when pronounced by a higher court.

• Common law adjudication requires research, analysis, and integration of relevant statutes and cases to determine "what the law is" in a given situation.

• The common law evolves to meet changing social needs and improved understanding, and its method is inductive, drawing generalizations from particulars.The Evolution and Importance of Common Law

• Common law courts can reinterpret and revise the law to adapt to new trends without legislative intervention.

• The common law evolves through gradual steps, reducing disruptive effects.

• Legislative changes tend to be large, jarring, and disruptive.

• The evolution of the law of negligence illustrates two crucial principles: the common law evolves, and the reasons given for a decision are often more important than the outcome.

• Common law decisions are published in law reports for use by lawyers, courts, and the general public.

• The basic law of contracts, torts, and property does not exist in statute but only in common law in most states of the United States.

• Modern statutes often leave a number of terms and fine distinctions unstated, relying on the pre-existing common law.

• Some statutes displace common law, for example, to create a new cause of action that did not exist in the common law or to legislatively overrule the common law.

• The power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution.

• The interactions between decisions of different courts are discussed further in the article on precedent.

• Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels, the earlier panel decision is controlling.

• Stare decisis is the principle that courts should follow precedent unless there are compelling reasons not to.Overview of Common Law Systems

• Common law is a legal system based on judicial decisions and precedent rather than legislative statutes.

• Precedent is binding in common law systems, meaning that older decisions remain controlling when an issue comes up the third time.

• Some courts, like the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, which means that the later decision controls.

• The Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts.

• Common law systems are a significant contributor to the robust commercial systems in the United Kingdom and United States because parties can predict whether a proposed course of action is likely to be lawful or unlawful.

• Common law systems are more predictable than jurisdictions with weak respect for precedent because parties have less guidance and must often leave a bigger "safety margin" of unexploited opportunities.

• Commercial contracts often include a "choice of law clause" to reduce uncertainty, and New York common law has a depth and predictability not yet available in any other jurisdictions of the United States.

• 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.

• In the United States, state courts continue to exercise full common law powers, and create both general common law and interstitial 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.

• The term "common law" is often used as a contrast to Roman-derived "civil law," but there has been considerable cross-fertilization of ideas between the two legal systems.

• The impact of Roman law had a significant influence on common law, with some of the first common law scholars being clerics trained in the Roman canon law.A Brief History of Common Law

• The Roman divisions of actions into in rem and in personam used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries.

• Lord Chief Justice Edward Coke's treatise, Institutes of the Lawes of England, was the first attempt at a comprehensive compilation of centuries of common law in the 17th century.

• Sir William Blackstone's Commentaries on the Laws of England, published in 1765-1769, was the next definitive historical treatise on the common law.

• Reception statutes were implemented as former British colonies became independent, adopting pre-independence common law, to the extent not explicitly rejected by the legislative body or constitution of the new nation.

• The Jeffersonians preferred a legislatively enacted civil law under the control of the political process, rather than the common law developed by judges that were insulated from the political process.

• Reliance on old maxims and rigid adherence to precedent came under critical discussion in the late 19th century, starting in the United States.

• The abolition of common law pleading requirements was one of the major reforms of the late 19th century and early 20th century.

• The primary contrast between the common law and civil law systems is the role of written decisions and precedent.

• In common law systems, case law is binding common law to the same extent as statute or regulation, under the principle of stare decisis, whereas, in civil law systems, individual decisions have only advisory, not binding effect.

• Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge, whereas, in civil law systems, criminal proceedings proceed under an inquisitorial system.

• In an adversarial system, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented.

• The United States Supreme Court regularly decides based on issues raised only in amicus briefs from non-parties.