the common law in america

1. The Common Law in America From Magna Carta to the War on Terror

3. Common Law as Distinct From Local Law in Medieval England Common law is �common� to all the royal courts of England Common law courts draw business away from feudal and Church courts Common law courts help English kings to preserve order, efficient administration, in a far-flung kingdom (both sides of the Channel)

4. The Common Law Writ System An order from the king to the sheriff commanding the appearance of the defendant to answer a complaint Every writ was based on a specific principle of law Writs were very narrowly interpreted

5. The Writ of Right The King to the sheriff, greeting. Command [Smith] that justly and without delay he render to [Jones] one hide of land in such a vill, whereof the said [Jones] complains that the said [Smith] deforces him. And if he does not do this, summon him by good summoners that he be before me or my justices on the morrow of the second Sunday after Easter at such a place to show why he did not do it. And have there the summoners and this writ.

6. Specific Implications of Writ of Right Injured party initiates action for remedy Must state facts consistent with remedy sought If defendant refuses royal order, he must appear in court to explain his refusal Judge and jury decide the outcome after hearing both parties

7. General Implications of Writ of Right Royal interest in the undisturbed possession of property Willingness to decide disputes impartially Readiness to enforce judicial decisions

8. Angevin Influences on Early Development of the Common Law Henry II (1154-1189) Skillful and energetic administrator Founder of common law Richard the Lionheart (1189-1199) Absent from England Incurs heavy financial obligations John (1199-1216) Inept and abrasive Forced by barons to sign Magna Carta

9. Ramifications of Magna Carta A statement of the law to which King and Barons would adhere Later understood more broadly Chapter 61: a right of resistance against tyrannical rule Chapter 12 : �no taxation without representation� Chapter 39: early statement of �due process�

10. Common Law as Distinct From Positive Law Common law: a body of principles derived by judges from precedent or custom Positive law: statutes made by legislatures and regulations issued by administrators

11. Common Law as Distinct from Civil Law Present use depends on primary cultural influences French and German legal systems heavily influenced by Roman law codified by Justinian (A.D. 527-565) Former British colonies uniformly adopt common law Distinction fades over time Common law systems make more use of statutes, Civil law systems make more use of judicial precedent

12. Common Law in the U.S. All states except Louisiana began with the same British common law In time, individual state systems of common law diverge To find the common law in a state, find the relevant state court precedent and then reason by analogy

13. Doctrine of Stare Decisis Prior decisions of the highest court in a jurisdiction are binding on all lower courts Common law�s natural tendency is conservative Positive law better at responding to social change

14. Critical Difference Between Common Law and Positive Law Blackstone treats judges as incorruptible oracles Holmes is more realistic, but retains belief in self-sustaining system Different in practice, antithetical in spirit Common law begins as a consolidation of royal power, but becomes a limitation by 17th century Positive law (Parliamentary supremacy) begins as a limitation on royal power in 17th century, but becomes the essence of the modern state by 20th century

15. Rule of Power or Rule of Law Conflict emerges most clearly in two areas Rise of the administrative state Due process and the War on Terror Possible reconciliation of two views by shifting focus from custom and formal procedure to authority and obligation from law as externally forced to law as voluntarily undertaken

16. Illustrations Abrams v. United States (1919) Roth v. United States (1957) Hamdan v. Rumsfeld (2006)