Pre United States British law? Ancient Roman law? What 's the limit?
Hm. I know I’ve cited cases going back to the 1880ish period before… in fact - here we go
Harris v Gamble (1878) 7 Ch.D 877
Rutter v Tregent (1879) 12 Ch.D 758
Of course, this is the context of UK/Singaporean law, but this is the first reply, so… 
I have the impression that Marbury v. Madison (1803) still comes up once in a while. I’m curious whether case law is referencable (? usage) beyond that date. Or, failing that, beyond 1789.
It really depends on what level you are at (granted not a US lawyer,but from a fellow common law jurisdiction). If its a simple contract or Tort case at first instance, there really is no need to look very far. At appellate level, well even relevant foreign cases might go in, they are persuasive.
My own experience with US Law is that law students are familiar with with landmark from England and Wales and may well know how the law in a certain area is developing. This goes against the image of the aloof US legal system.
There is no formal rule that restricts citing case law that is or is past a certain age. While the general notions or ideas of Roman law may still be around, there are no known exact Roman statutes I’ve ever heard of that could be cited. Similarly, there’s no book I’ve ever known that has actual Roman cases which could be cited.
Realistically, however, citing very old case law or statutes is not very helpful to most arguments since any legal argument is likely either much more sophisticated or nuanced than very old law or relies on the law as it has changed through more recent case law.
There are two kinds of authorities that can be cited - binding authority and persuasive authority. Binding authorities are cases or statutes that must be followed by a particular court as a matter of law, such as a U.S. Supreme Court case whose ruling deals with the issue at hand and relies on the U.S. Constitution for the basis of its decision. Persuasive authority is anything that isn’t binding on the particular court but the court can look upon as something useful or advisory, such as written appellate cases from other state or federal circuit courts or even foreign courts. Any kind of Roman or pre-Revolution British American law, if any could be used in a substantive fashion, would fall under this category. Since it wouldn’t be binding on a court in any way, it’s usefulness would be limited, particularly since the law has changed in so many ways since either era.
There is a recent case in New York involving local fishing rights that centers on language in New York’s colonial royal charter. Let’s see if I can dig up a cite…
Ah ha!
No idea how nutty or not Mr. Vorpahl’s case is.
When the US became independent of Britain, the new country adopted the existing British common law (the legal opinions of judges, rather than statutes passed by legislatures), giving their new nation a historically strong body of precedent to draw from (cite). Technically, I suppose, any of that common law that has not been surpassed by statute could still be cited as authority, but I’m unaware of any such thing still existing.
It’s still common in law school to teach some of the pre-1775 British law in US law schools, mostly for historical context and to show the development of legal thought over time. I reckon every lawyer alive has heard of Lord Coke, and Coke’s writings included interpretations of the Magna Carta, so it’s theoretically possible to get back that far.
Well, there’s no reason to cite a Roman statute. It’s not part of the body of common law.
Most of the British common law has been surpassed by either statute or more recent US case law. It can always be cited as persuasive authority for whatever reason, but I’m not sure anything before 1800 is binding.
It would be interesting to find about the oldest case law that is still binding precedent.
Is not the US Constitution still cited?
[nitpick: Coke was never granted a peerage, so it’s not correct to refer to him as Lord Coke. He was knighted, and was appointed Chief Justice of the King’s Bench, so the correct reference is to Sir Edward Coke, Lord Chief Justice.[/nitpick]
The OP is asking about case law, not statute (or Constitution).
This is kind of an tangent, but: South Africa has a rather odd hybrid legal system in which some parts are drawn from English common law and others from Roman-Dutch law (that is, the pre-Napoleon law of Holland). I have read a decision of the Constitutional Court of South Africa which was based on the Corpus Juris Civilis of Justinian.
(Quite an interesting case, actually: it was about a person who, during the apartheid era, had been abducted by the South African military across the border from a neighbouring country, and then handed over to the police in South Africa to be arrested. The decision in the case hinged on the Roman law governing the ability of provincial governors to pursue criminals into other provinces and bring them back.)
South Africa is one of the few jurisdictions in which Roman law is still part of the law, because the Napoleonic Code (and related other codes) replaced it in most of Europe. (I believe Scotland is another such jurisdiction.) It is, at least in theory, possible for South African lawyers to cite both Magna Carta and the Justinian Code.
<slightly off-topic>
I must say I find the concept of citing precedents that are 1,000+ years old a little odd. For one thing, there’s the “lost in translation” factor- legal language can be so dense even in modern English that a single word or phrase can be cause for days or weeks or years of litigation.
I presume South African courts observe a standard language in their proceedings- Afrikaans? English? - so you might end up citing a case translated from Latin to English to Afrikaans, or whatever.
<so-t>
As far as I can recall - and I wish I could find that decision again - it was the Justinian Code as “filtered” through the 16th- and 17th-century Dutch jurists; so there wasn’t really any more of a “lost-in-translation” factor than there is with English case-law precedent of the same period. The decision was in English - as most are - and as far as I can recall it included an English translation of the relevant bits.
(I actually have a sneaking suspicion that the judges knew what result they wanted and then went looking for useful precedent.)
I dare say that con law cases are most likely to involve old, old precedents. Most people would concede “original intent” at least some value in constitutional interpretation, and it’s hard to explicate original intent without citing contemporary, usually British, cases and commentary.
For example, consider Powell v. McCormack, recently in the news because of the Burris controversy. The Supreme Court opinion states, “(W)e begin with the English and colonial precedents”, and then cites a decision of the English House of Commons from 1553.
To be sure, this involves an interpretation by the Commons rather than by a Court, but the principle is the same and I imagine lawyers could find similar citations to British court cases in American con law cases.
technically, the Corpus isn’t a precedent, in the sense of a report of a decision of a court. Rather, it’s a comprehensive re-statement of the law, including academic commentary, imperial statutes, and some case decisions.
As for the translation issue, it is the source of most modern European civil law, and has been extensively annotated and commented upon, and worked into the law, so I wouldn’t think that the translation would pose many issues.
For more, see this thread from last year: Diff between common and civil law.
And, from a Canadian perspective, the earliest cases I can remember citing in a legal opinion are the Case of Proclamations 1610, 12 Co. Rep. 74, and a decision from Star Chamber about 1620.
Please tell me everyone in common law jurisictions at least knows about the Earl of Oxfords Case. You know… the one about the status of equity and common law, and that equity will always prevail where there is a dispute.