You know very well that statutory law is not uniformly clear in this respect. Often – except in situations in which a statute has been explicitly written to overturn common law – it is not crystal clear what a statute means in a specific factual context. Our statutory system has developed as an overlay to common law. As a result, the mechanics are the same, only that trump cards are slightly more frequent. As other posts have pointed out, a federal appeals court often has no choice but to apply traditional common law principles even when there is a statute explicitly addressing an issue.
With respect, that’s mainly rationalizing nonsense, sir. I ask you to point to any decision of the Supreme Court this year in which “common law” was truly involved in reaching the decision the Court made. And even if you can find one, I defy you to find any significant percentage of such decisions. It is simply untrue that federal law has any remaining significant relationship to ye olde English common law. The odd case, yeah, especially if someone who is a believer in interpreting the Constitution according to the meaning it had in 1789 is trying to parse some language from that document. Other than that, nope.
With respect, your sarcastic “sirs” are unwelcome. Every damn thing that an American court does that is not simply the literal application of the actual words of a statute is an act of applying common law. Every time the facts of a case present a question that cannot be answered by simply looking at the plain language of a statute, a court can do nothing but apply common law principles. By doing this, a court is making law and making policy in the same way that common law courts have always done. It is a rare situation in which a written opinion of a court does nothing but apply a statute without some act of common law jurisprudence. By definition, if that’s all it were doing, no written opinion would be needed. Every time a court bothers to cite a prior decision, that’s an act of common law. And, indeed, the legislature, by writing statutes that are capable of multiple understandings, intends for a court to do exactly that. The idea that American courts do not make law or are not supposed to make law is what is errant nonsense. A court, particularly an appeals court, cannot function in our system without making law.
You seem to be of the opinion, then, sir, that countries based on code law, not common law, don’t have to interpret the meaning of the codes they follow. This is incorrect. Most decidedly incorrect. Thus, the act of interpreting a statute is not a function of being a “common law” court, but rather the function of having to deal with an imprecise language.
A “common law” court does more than interpret statutes. A common law court actually makes law. When a situation is presented to it that has been presented to it in the past, where no specific statute directly addresses the issues, it refers back to what has been decided in like cases and applies the principles it thinks have been developed. If a situation is presented that is novel, or one for which the prior solutions have (in the court’s opinion) been ineffective, it comes up with some principle for dealing with the situation, and applies that to the case in front of it. After that has happened several times, there evolves some principle for dealing with such cases, which principle can then be said to be the “common law” of the land.
Miranda, for example, is federal common law. The decision in the case was not mandated by the Constitution. But the Court decided that some principle had to be put into place to deal with situations of like nature. Yet, the decision in Miranda has been roundly criticized precisely for this fact. Indeed, it is questionable that it will survive much longer as a viable rule of constitutional law, though it may be the case that various states and the Congress may codify it. The common law nature of the case makes it entirely radical for a decision from the federal judiciary.
But, by contrast, the Court routinely has to deal with application of very intricately written statutes on things like banking law. There were a whole series of decisions at one point addressing ambiguities in the ERISA. Now ERISA is a pretty thorough piece of legislation. Very intricate. But there were a number of issues that had to be resolved. Do you think that, in code countries, a court presented with a statute that is potentially ambiguous simply throws up its hands and says, “I can’t figure out what this means, so I’m not going to try?” So interpreting what ERISA means isn’t the act of a “common law” court.
Now, you assert that simply because federal courts adhere to the principle of stare decisis that they remain common law as opposed to civil law courts. I assert that this is only facially true: jurisprudence constante is much the same as stare decisis, and, indeed, is closer in some respects to true common law principles (a group of cases over time decide how to apply a law) than stare decisis (the decision of one single case makes that determination). So applying stare decisis is not alone sufficient to claim that my assertion (which I repeat here since it appears that you may not remember what I said exactly) that, “Except that the United States, and the states therein, have long since modified their approach so that they are increasingly NOT common law systems. Virtually everything anymore is governed by statute, including crimes, torts, property law, etc. While there are common law principles that we still apply, many of those are enshrined in the law through statutes” is wrong.
Finally, you should re-read my original post in the series that lead up to this exchange. I said,
So I’m not so clear as to exactly why you insist upon maintaining the untenable postion: THE COURTS ARE COMMON LAW COURTS AND THUS MAKE LAW WHEN DECDING THINGS. The last two sentences of your most recent post,
“The idea that American courts do not make law or are not supposed to make law is what is errant nonsense. A court, particularly an appeals court, cannot function in our system without making law.”
do not require that they be truly “common law” courts.
I know next to nothing about civil law jurisdictions, and I make no comment about them. The fact remains, regardless of how much statutory law is overlaid over a common law system, it remains a common law system, its assumptions, its procedures, its approaches. Statutory law has always been integrated into our common law system, and our courts address statutes as common law court always have. And this addressing necessarily results in judge-made law.
Having skimmed the exchange, it seems to me you’re not disagreeing substantively, but one of you is taking an idealist position and the other a realist position. Perhaps you should retire to neutral corners.
–Cliffy