Chapter 4 - Common and Statutory Law Basic Processes by which Law is Made 1. Formulation of rules by courts/judges where no statutes apply 2. Enactment and interpretation of statutes 3. Interpretation and application of constitutional provisions 4. Promulgation (formal proclamation) of rules and regulations by administrative agencies 1) Origin of Common Law ● As time passed and more and more cases were settled, a rudimentary body of contract law came into being. ○ If contract existence denied, court had to specify minimum elements for a contract ○ Courts naturally looked at what earlier cases had done and followed ○ These became the law of US early colonies ○ As states formed, they followed suit and adopted common law. Exception: Louisiana is governed by civil law sys used in most Euro countries --almost all law is codified The Current Scene ● State legislatures gradually passed more and more statutes, resulting in: most branches of the law are statutory ● Despite increasing statutory law, several branches of law are still common law ○ Contracts, torts, agency ○ Judges bear burden of: ■ Providing “justice” ■ Setting a precedent that will serve greater interests of society in future ● Must serve public policy interests SO court stresses on: ● Customs, morals, conduct prevailing in community at time ● No doubt personal feelings on right and wrong influence judge Role of the Judge ● Four “directive forces” shaped the law ○ Philosophy (logic) ■ Look to common law when constitution and statutes are silent ■ Stare decisis - “to stand by decisions” ○ History ■ evolution ○ Custom ■ Customs of society, tradition ○ Social welfare (sociology) ■ Justice, morals and social welfare ● Law must grow beyond the early precedents and must extract precedents from underlying principle (ratio deciendi - the ground of decision) Common Law - The Doctrine of Stare Decisis ● Inclination of courts to generally follow precedent - stare decisis
● Attorneys of both parties search for similar fact patterns Types of Precedent ● Mandatory authority - authority originating in courts above the trial court in the appellate chain ○ Must be followed ○ Hierarchy: ■ State Supreme Court precedents ■ State intermediate appellate courts ■ State trial court ● If no precedent in state, can look at other states’, but do not have to follow their precedent, as it cannot be appealed to the other state’s SC ● Persuasive authority -using other state’s precedent ○ If judge does not follow, risks reversal ○ Judges will usually follow even if they disagree ● Judges will still change a rule if convinced it was wrongly established, never served society’s interests, or is outdated from changing society. ○ Judges will change the law if there is no valid reason Common law rules change slowly, slow evolution Statutory Law and Common Law - A Contrast Differ with respect to the processes by which each comes into being and the form of each after it becomes operative.
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