Chapter 2: Common Law

The system of law in the United States is unique among nations because of its combination of common law and constitutional hierarchy.

Common law is judge-made law. It is case law. The only way that the judiciary can speak is through individual cases brought to it for resolution. Unlike the other branches of government, the judiciary is not a self-starter. Common law begins when citizens file a case in the courts. Only constituents can invoke the workings of common law.

During the past 40 years, federal, state and local governments have enacted increasing amounts of legislative law. However, rather than lessening the impact of judge-made law, this development has added broader dimensions to the common law. Legislation needs interpreting. Courts construe statutes when required to do so in individual cases. Thus a body of common law develops around the enactment.

Many of the legal problems of the media are resolved by common law processes. Libel and privacy cases are common law torts unfettered by comprehensive legislative enactment or administrative regulation. As a result, reporters, editors, broadcasters and publishers must piece together judicial decisions in order to discover the sometimes complex jigsaw of legality.

Dual Function of Common Law:

Case decision in the common law process fulfills two purposes: It resolves the dispute between the litigating parties, and it lays down a precedent on which the future can rely. Thus, it looks backward at a controversy already existent and looks forward to potential controversy not yet in being.

The former function is born out of the need to look at each case anew, to give every citizen a day in court, to examine each case in its own context. It is situational justice; it champions specificity. The latter function, however, is born out of the need to be consistent with the past, to examine previous cases in conjunction with the case at hand. It protects societal security and stability. It fosters generalization.

There is, therefore, a strange mixture of rigid generality with flexible specificity in the common law. The need to be uniform and to apply law consistently in like situations locks common law into fixed rules and principles and regards the common law as a neatly balanced, self-structured system. On the other hand, ad hoc decision-making favors examination of contemporary norms and customs and regards the common law as the reflection of current society.

Justice Oliver Wendell Holmes, Jr., said  “It is the merit of the common law that it decides the case first and determines the principle afterward.” He was urging that the value of common law is its contemplation of each dispute as it arises without its own situational justice. Generalizations that single-package all situations should be mere observations after the fact, not controls before the fact. To this extent, common law is anathema to statutory law.

Statutory law applies deductive thinking. The statutory norm becomes the major premise in a syllogism; the alleged fact of a violation is the minor premise. Outcomes in statutory law are arrived at by application of reasoning from the general to the specific, from abstract to reality. (The case by case tenets of common law suggest an inductive approach.)

A case decision by the courts becomes precedent for future cases. This is called the doctrine of stare decisis (to adhere to decisions). To what degree should judges follow precedent set by former cases? A great deal of controversy has always existed on that issue.

At one end of the spectrum are judges who look to the former case(s) and theorize some generality from it; the “rule” of the prior case becomes mechanically controlling in all similar future cases. The most strict of these judges will give “the rule” a status akin to statute and will deny even their own power to overturn it. This was the clear law in England until as late as 1965 where not even the highest court in England (Law Lords of the House of Lords) would overturn their own prior decisions.

At the other end of the spectrum, there are judges who regard case precedent as simply persuasive analogy. Those judges will not consider the decisions of prior cases as settled law in deciding the case at hand. They are, however, influenced (but not bound) by a need to reason uniformly in similar situations, so that outcomes are reached with logical consistency.

Trial courts are committed to the strict view in applying the decision of higher appellate tribunals. Appeals courts are the ones more apt to evaluate the need for stare decisis.

Some appellate courts will vacillate in choosing the strict or liberal view of precedent. That ambivalence is usually the product of court personnel changes. Our own Supreme Court of Oregon has wavered on stare decisis and the overturning of precedent. In 1955, in Landgraver vs. Emanuel Lutheran Charity Board, Justice Walter L. Tooze speaking for a 5-2 majority refused to strike down the court-created charitable immunity doctrine, stating: “Once the court has ascertained and declared that public policy, it becomes the law of the state, and is as binding as a legislative enactment.”

In the following eight years, five new justices reached the court. This new alignment in 1963 overturned the charitable immunity doctrine. Justice Alfred T. Goodwin, writing the majority opinion, said: “It is neither realistic nor consistent with the common law tradition to wait upon the Legislature to correct an outmoded rule of case law. The pull of stare decisis is strong, but not inexorable.”

In European countries such as France, courts are neither bound nor influenced by their own decisions nor by the decisions of higher courts. Indeed, a judge is precluded from announcing general rules in a given case; citation to the applicable provision of a written legislative code is all that is necessary.

The European courts are also less centralized, so that district appellate courts rather than a central hierarchical court are more likely the final resort. With detailed codes providing national continuity, there is less need for judicial uniformity or centrality.

Distinguishing Common Law Precedent:

The overruling of precedent is, of course, the most drastic result that can occur in the common law. Because overruling precedent disturbs the stability of the common law, judges often employ the tactic of distinguishing precedent rather than overturning it.

One device for ignoring a prior case pronouncement is simply to declare that pronouncement is dictum, a tangential remark not necessary to the decision in the previous case and, therefore, not precedent. Because the judiciaryís power can only be invoked by disputants in controversy, a court cannot broaden its power by going beyond the confines of what is necessary to solve that controversy. Any attempt to do so is mere dictum and not binding.

Another device for distinguishing precedent is to find that facts of the previous case are not analogous. For example, pronouncements in a criminal opinion are not binding in a contract case.

A more candid device for not applying precedent mechanically is the recognition that some precedent is not as compelling as others. The late U.S. Supreme Court Justice Felix Frankfurter urged that cases which were not well researched, carefully argued, or thoroughly considered, should be frankly devaluated on the scale of precedent.

Precedent may be viewed strictly or loosely. It may be strictly construed and held to its narrow environment, thus virtually discarding it as precedent. Or it can be broadly construed and liberally extended to all of its language, thus spreading its mantle over large area of subsequent cases. Whether a given court chooses one or the other deployment depends upon that courtís attitude as persuaded by trends, “trends in the situation or in the times at large.”

Due to the volume of cases and the need to expedite case backlogs, many federal courts and boards have adopted rules whereby certain specified decisions are not to be used as precedent and whereby certain expedited decisions may not be appealed.

Formalization of Common Law Appellate Opinions:

There are by-products of this common law system. A case-by-case approach to the law demands the writing and publication of judicial opinions. In the two centuries of American law, more than 3 million judicial opinions have been written and are housed in over 17,000 volumes of cases. The millions of words of judicial opinions written each year further spawn texts, encyclopedias, and a vast amount of commentary upon the law published in over 500 law reviews and other periodicals, all of which command thousands of pages of indices. Such proliferation unmasks the notion that common law is “unwritten” law. On the contrary, it is the most written law.

The essence of the common law is the written judicial opinion. Unlike statute or executive decree, it spars in the marketplace of ideas. In the pattern of editorials or essays, the judicial opinion talks to us, gives us reasons with which we may agree or differ. It discusses. It attempts to persuade. But most of all, it deals directly with the non-antiseptic world of actual behavior between real and specific people.

Common law is born out of citizen dispute. A legal system that develops from those popular origins in contrast to one where laws are propounded sweepingly by the political elite from abstraction and perceived future needs, is arguably more responsive to the spirit and mores of its constituency.


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