The Candid Truth: 2009

Here is a conversation that I had on Facebook about the common law and case law. I have taken out the friends name and the name of the person I was discussing it with. I am posting it as I think it is worth knowing. Like the Law Student involved, I am sure my other lawyer friend's will disagree with my position, but I have no problem with people being wrong. While I agree that case law is what is used today, it is not a system of law that our founders understood nor would they agree with it. When Langdell began this system it took other law school well over a decade to begin teaching it. It would be of interest to find out if it was in fact any of his students that brought it to the other schools. It has been modified to take out the multiple posting tags and I made a couple of corrections to spelling errors in my responses.

Friend: I got an issue of first impression today. I may leave a mark on Maryland case law today. :) Thu at 3:32

David K Kyle at 4:04pm June 25

How many times do I have to tell, "Case law" is a figment of the lawyers imaginations. There was no such thing as case law to our founders.

Law Student at 4:16pm June 25

Not true. The English common law, for instance—largely adopted by our Founders and still enshrined in many parts of American law—is case law

Friend at 4:17pm June 25

I have been confused about that for a long time. What is the difference between common law and case law?

Law Student at 4:28pm June 25

Common law, according to Black’s is “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions; caselaw.” Common law and case law are essentially the same thing.

To say that there was no case law at the time of the founding is to say that there was no law outside of statutes and Constitutions, and that is undoubtedly untrue. The English common law was highly influential during that time, and largely adopted throughout the new nation. Even today, large portions of tort law, contract law, etc., are derived from English common law adopted during the birth of the U.S.

It is, however, largely true (with a few exceptions) that there is no such thing as FEDERAL common law today. However, that wasn’t always the case. Moreover, common law (case law) has been a significant component of state law from the very beginning.

David K Kyle at 8:33pm June 25

Judicial decision that stood the test of time and were ruled in the same way time and again. Case law is what is said by the court once. There is a big difference I would suggest you go reread your Blackstone. Common law and case law are two completely different things period. They are only similar in the minds of people that do not know. Case law can be changed at the whim of a judge, common law can only be changed by statute according to the founders!

Law Student at 9:06pm June 25

I suggest you offer citations for your assertions. Never have I seen a definition of “case law” that confines that term to “what is said by the court once.” Nor is it true that courts are incapable of modifying the common law. Should it choose to do so, there is nothing preventing a state’s highest court from modifying the common law. The legislature is free, of course, to step in and reverse a court’s modification of common law, but there’s nothing to prevent a high court from modifying the common law in the absence of legislative intervention. If you disagree, what, pray tell, would prevent a state’s high court from doing so? Recall that the common law itself is judge-made law, and that the common law rules which are now so ingrained in our law began as rulings “said by the court once.”

Example of courts abrogating the common law: In tort law, the old common law “rule of sevens” held that children are generally considered capable of tortious behavior according to the following guidelines: children under seven are considered incapable of torts; children between the ages of seven and fourteen are PRESUMED to be INCAPABLE of torts; and children over fourteen are PRESUMED to be CAPABLE of torts. However, the high courts of several states have rejected the old common law rule in favor of a subjective standard which says that negligent children are to be held to the same standard of care of a reasonably careful child of the same age, intelligence, and experience, except in cases involving inherently dangerous activities, in which case children are held to an adult standard of care.

Citation for my previous post: See, e.g., Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979) (noting that the COURTS of several jurisdictions “have created an exception to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort”).

David K Kyle at 12:08am June 26

The courts ability to modify the common law is only a recent discovery by them. Here in MD it was done in the 70's. Read the founders, they were explicit that it is only the legislature that can change the common law. Read MD DofR art 5 to give an example of this. "That the antient collection of unwritten maxims and customs, which is called the common law" Blackstone. The common law did not come from judges but was carried out by them on a steady unwavering course from time immemorially. Hmm when is your court citation from when the court said it can change the common law? Oh yeah 1979, yes it was in the seventies when they said the same thing here in Maryland. Now find me a case where they said they could do it before 1950. If I have the time I will find where the framers said changes to the common law are the business of the legislature.

Now what does Blackstone regarding learning the law and precedent. "the least variation from established precedents will totally distract and bewilder him." A student like Caleb can learn something in case law last month and even write a paper on it and the following month a SC can change it, therefore what he has learned as the "law" is no longer the law. The founders believed in the law being absolute. That is no longer the case. In fact look at Roe. People are worried about a change in the "precedent" of Roe with a change in the makeup of the court. Of course in the case of Roe the court changed long standing of precedent of abortion. Then in Doe v. Bolton they changed the who knows how long precedent of abortion being illegal under the common law after quickening.

It is also a fact that there is a service that lawyers can get that tells them what "case law" is no longer valid. There again what could be used at one time is no longer valid. The system of law today is a joke as it vacillates all over the place at times solely just because of the type of person that gets put on the bench. "For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady…" Blackstone.

Although I have to say that the one thing where the courts do have a say in the common law is in what applies to us here. As many parts of the common law deal with the King and the church which of course would not apply and therefore have no force in our laws. That is where the founders believed our courts had a jurisdiction when dealing with the common law.

"Edward the Confessor, out of the former laws (Molmutius's law, Mercian law, West-Saxon law, Dane law) composed that which we now call the common law. These laws were only general customs observed through the nation, which for that reason were called Common… At present the law of England is divided into three parts.

1.Common law, which is the most ancient and general law of the realm. 2. Statutes, or acts of parliament. And 3. Particular customs." – Cunningham's Law dictionary, the dictionary of choice of the founders. This is not to say that judges didn't rule on these laws, but the point is that any judge given the same set of circumstances will come to the exact same conclusions if they follow the law. They can't deviate from it because they think society is changing, or they feel they need to do social experiments. They can reject a law that violates the Constitution but they then can't substitute something in its place as they so often do.

About your comment "Never have I seen a definition of “case law” that confines that term to “what is said by the court once.”" Are you telling me when the SC hands down a decision that it then does not become case law? Are you sure you want to make that statement?

Law Student at 8:01am June 26

None of the quotes you offer sheds light on the central question here—whether the common law is a form of “case law,” an umbrella term referring to judge-made law, which is precisely what the common law is—nor do any of your citations state in any express manner that the courts of today are somehow incapable of legitimately modifying the common law. You even go so far as to concede that courts ARE capable of determining which components of the common law—e.g., those involving references to the King or the Church—no longer hold force today, a concession that seems not inconsistent with the notion that today’s courts have a role in determining, perhaps for modern policy reasons that did not apply 200+ years ago, that the common law should be modified under certain circumstances.

It also defies simple logic to suggest that we are somehow bound by non-legislative, judge-made law promulgated centuries ago, but that similar decisions by modern judges, who are presumably more in touch with the realities of the modern world, are somehow invalid. For what reason should we be bound by that assertion, one that, even if some of the Framers subscribed to it (and that is far from established here), was not in any way enshrined in our federal Constitution.

I also detect in your posts an ideological or political belt that is generally unhelpful in answering questions of this sort. That is something, I suspect, that you might be able to cure with a bit more open-mindedness and perhaps some legal training.

Finally, regarding your last point, I never suggested that a single decision by the Supreme Court (or the high court of a state) is somehow not case law. Rather, I asserted only that the definition of case law is not limited to single decisions by legitimate tribunals. The term "case law" applies not only to single decisions by courts, but also to the extent to which subsequent decisions by those courts and others affirm and/or reverse prior decisions.

David K Kyle at 8:57am June 26

There is a huge difference in a court determining what part of the common law applies here in the states from that of GB and changing those parts of the common law that apply to us. Read MD DofR art 5. If you cannot see that I would have to say you have been to law school and don't want to reject what you have been taught.

My ideology is towards the Constitution as given to us by the founders. Determining their intent has nothing to do with my political leanings. Facts are facts. Have you ever read Blackstone, or do you just think you know what he says from what others have written about him?

Let me put this simply so you can understand. The common law is an unwavering expounding of the law from the courts ruling on what was established as law, not by them but by who made the law. Blackstone says "the decisions of courts of justice are the evidence of what is common law," "established by custom, which custom is evidenced by judicial decisions." There is a difference in being evidence of something and making something. Blackstone is also clear that it is not the right of judges to change the common law except in two cases, where it is contrary to reason or violates divine law. And when he says change he means to revert back to what it was after either a ruling from a judge that violates the common law or a change by Parliament.

You quote Black's dictionary which the first edition came out in 1891 after Christopher Langdell instituted his case law method in the 1870's. How did lawyers learn the law prior to that? By studying Blackstone's works or through Americanized editions like Tuckers and by apprenticeship.

I quote the Law dictionary the founders used for their understanding of what the common law is and you reject it because it does not conform to what you have been taught. Who is being closed minded here? Check out Bouviers Law dictionary of 1856, you will find no entry for "case law" nor will you find it in Cunningham's the one the founders used and the one that Thomas Jefferson recommended for every gentleman's library.

Here is a vague reference to statute changing common law that I could find in the time I have "Is it to be the common law with or without the British statutes? If without the statutory amendments, the vices of the code would be insupportable." Madison on the Virginia Resolution.

Law Student at 10:29am June 26

I will contribute to this discussion one more round of comments and then call it a day …

You say that your beliefs are grounded in the Constitution, but you then rely not on that document, but rather on Blackstone and other materials that, at best, constitute persuasive—as opposed to binding—authority.

Moreover, your argument that the common law is somehow not judge-made law is entirely unavailing. You note that “Blackstone says, ‘[T]he decisions of courts of justice are the evidence of what is common law, . . . established by custom, which custom is evidenced by judicial decisions.’” That’s just another way of saying that judges “made” the common law based on their interpretation of what was “customary” at the time.

Finally, I will note that your arguments—however persuasive (or not) they may have seemed to now-dead gentlemen who lived in the nineteenth century and earlier—were lost long ago. The rules you describe are not those we live under today; they are, quite simply, not “the law” in the modern age. And how this all grew out of Caleb’s entirely benign assertion that his work might have an impact on Maryland “case law,” I do not know, other than to say that your blunt assertion that “‘case law’ is a figment of the lawyers [sic] imaginations” was a silly and uninformed statement that demanded a response. “Case law” is not a controversial term, and is one that is simply used to describe judge-made law, a reality that has been a part of the Anglo-American tradition for several centuries.

David K Kyle at 5:14pm June 26

I use Blackstone to make my points about common law and case law because it is what the founders used to understand what the common law and law was. In the Virginia Ratification debates Madison said it was the book in everyone's hands. Abe Lincoln learned the law from reading what? Blackstone as did generations of lawyers in America until Langdell came up with the case law method that took almost 20 years to be taught at another law school other than Harvard. I do find it ironic that you seem hell bent on the method of law you were taught when it was started by an unknown lawyer who did not have vast experience in the law, but only thought he knew a better way to teach it. Also if you would have read Blackstone you would know that various parts of the Constitution are taken from those commentaries, so quoting Blackstone is applicable.

Now what is evidence? It is not the crime itself just as it is not the law. Evidence points to a crime or shows who might have committed the crime but it is not the crime itself. Blackstone uses evidence because judicial decisions should point to what the law is as intended by the framers of the law. It does not mean that they made the law only followed the law as judges are supposed to do. By your logic, when a judge confirms or follows a law passed by a legislature he is the one making the law which is absurd, he is only confirming the law.

What I find odd in your argument is that because the law was understood to operate one way by people now long dead it is no longer relevant. By the rules of interpretation given to us by the Framers we must interpret the Constitution by the intent of those that wrote it, not by what modern man thinks. Let's take the 14th amendment as an example. For 70 years it did not make the Bill of Rights apply to the states and case after case confirmed this. Then we have the beginnings of the incorporation doctrine where judges begin to selectively apply it to fit the results they want. Sometimes it is used at other times it is not. At first it is one of the bill of rights then another to we have what we have today. Did the intent of the framers of that amendment change or did the judges in how they applied the law?

I will agree that case law is not a controversial term now, but was unheard of until near the end of the 18th century with Langdell's creation.

While the Framers gave us only one law making branch of government, you now assert there are two. While you weave through my arguments, you fail to refute them expect to say that what dead men think no longer counts.

You call my statement silly but to do so you have to ignore the facts I present, and I will take it that you have never read Blackstone, the Federalist Papers or any of the ratification debates, if you had maybe you would have a better understanding of how the founders viewed law. The ironic thing is that you will blindly follow a dead judge, but not the person that made the law.

However, I can see that we will have to agree to disagree which is a common thing from lawyers that want to ignore the facts.

Law Student at 9:57am June 27

Dude, the bottom line is that there are three points you simply cannot legitimately refute here.

First, the common law is judge-made law, and thus “case law.” You can say that it originated long ago, that it has largely stood the test of time, that it is based in custom, or that it is derived from divine law (a rather dubious assertion, in my book), but you cannot escape the fact that it was created by judges, and not by legislatures. Repeat after me: The common law is judge-made law, the common law is judge-made law, the common law is judge-made law …

Second, many, if not most, of your arguments regarding framers’ intent were lost long ago. You may tilt at windmills all you like, but the fact of the matter is that your views do not generally reflect what “the law” is today. Time to move on …

Third, and finally, you disparage lawyers, law schools, and legal education generally, yet without acknowledging that the primary purpose of a legal education is to prepare a lawyer to do his or her job, which is to zealously advocate for the interests of his/her client under the law as it stands today—and not as dreamers or ideologues would like the law to be. Were I to enter a courtroom today and attempt to represent a client by quoting Blackstone ad nauseam, or by calling for the reversal of the incorporation doctrine, or by aggressively expounding upon the views of the framers, I would be guilty of incompetence at best, and malpractice at worst. I would almost certainly lose, and thus do a great injustice to my client.

I’m out—for real this time. Enjoy those windmills, my friend. Tilt away …

David K Kyle at 12:57pm June 28

As final proof that I am correct consider the following and I could offer more, but in the interest of keeping it brief I will refrain from doing so.

"This Common Law, though the Usage, Practice and Decisions of the King's Courts of Justice may expound and evidence it, and be of great Use to illustrate and explain it; yet it cannot be authoritatively altered or changed but by Act of Parliament." - The History of the Common Law of England, Matthew Hale, 1713.

Statues also are either declaratory of the common law, or remedial of some defects therein…Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges… Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges." – Blackstone.

The Hale explanation seems to be self-explanatory. So if we take a look at the one by Blackstone, what does that tell us. If in fact the common law came from the rulings of judges, which would they not be empowered to change it. Even a small defect according to Blackstone must be done through an Act of Parliament. It would make no sense whatsoever that if judges made the law they could not correct even its smallest defect. Blackstone even makes the observance that acts of Parliament are needed to correct the common law when judges make mistakes in determining what the common law is. If the common law was the same as case law there would be no need for this is it came from the very judges Parliament is trying to correct.

Blackstone was also clear in the role of the courts when determining the common law. "what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his own private sentiments: he being sworn to determine not according to his private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one." This is at direct odds to what case law is today.

All of the evidence I have presented proves beyond a doubt that common law and case law are two completely separate and distinct systems. One the common law is actually based on law, while case law is based on judicial whim. Case law is a system where judges are not bound by the law but by what they think the law should be which is a far cry in how the Framers of our government provided. They knew the judicial branch to be the weakest of the three, now it is the strongest. The modern system of case law has turned our system of government on its head. We no longer have the rule of law, but the rule of judges.

I find it amusing that you justify what is going on today because that is what is taught in law schools. You ignore the foundations of our government because it no longer applies. Who says it no longer applies, the lawyers. The ones that have benefited from it becoming the system it has become. So in your view a dictator has every right to ignore what he is doing by saying that was the old way, this is the new one, so therefore it is good. Why don't you just go ahead and say the Constitution is dead because that is in fact what you are telling me. The only problem is you and every lawyer out there, along with the ones who wear black robes wont say it because then the citizens would take notice. Instead you pretend to obey the system handed down to us by the founders and thumb your nose at it when no one is looking.

I have refuted your notion that common law is judge made law numerous times, the problem is you hold onto what you were taught, because you have to. While I offer more proof today I can see it will do no good because you refuse to believe the facts and the truth because it goes against your worldview on what law is or should be or pretends to be. The fact is I am right. You offer no proof whatsoever to your point of view other than to tell me those old guys are dead and this is the modern way.

I just have to wonder if you get your definition of the common law from Wikipedia.

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