Talk:Common law/Archive 3

From Wikipedia, the free encyclopedia

Contents 1 This seems incorrect 2 Tagged NPOV 3 Contradiction 4 This text needs rewriting.

[edit] This seems incorrect

To consider but one example, the First Amendment to the U.S. Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" - but interpretation (that is, determining the fine boundaries) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the text can only be determined by consulting the common law.

Roadrunner 17:30, 16 March 2007 (UTC)

Dear readers: While you can quibble about terminology a bit, I think the basic thrust of this passage is correct. The problem I have with the verbiage is that if you want to provide an example, maybe the example should relate to tort law or the other areas of law mentioned in the paragraph from which this material was moved (just to make it a bit clearer).

Essentially, all law in the United States (constitutional law, statutory law, regulatory law, treaty law, prior case law, etc.) is subject to intepretation by the courts -- by the judiciary. Interpretation of all laws is a basic judicial function. This means that the "current legal boundaries" of all laws can be determined by consulting the applicable case law. I would say that although the verbiage above is not necessarily "way off the mark," the article still works OK without that verbiage, and I don't particularly object to its removal. Yours, Famspear 18:10, 16 March 2007 (UTC)

I am the original author of this sentence (as well as almost the entire introductory section to this article, of which it is a part). After a close read, I think the sentence is exactly correct (but I'm open to a showing of error, or editing to make clearer), and serves a useful function.

Here's the thought process.

To answer Roadrunner's implicit question: The authority to interpret is part of the "judicial Power" of Article III. The delegation to the Supreme Court of the power to interpret was discussed at the Constitutional Convention, the state ratifying conventions (and perhaps the Federalist - I don't recall). In the U.S., the Supreme Court is the body, and the only body, that has final authority to pronounce the meaning of the constitutional text. (Congress has tried from time to time to usurp that power, e.g. the Religious Freedom Restoration Act in the late 1990's, and the Courts have struck down the congressional attempt.) Further, at least in the U.S., what alternative "interpreter" could you point to? Somebody has to determine what terms like "law," "respecting," "establishment," "religion," "free," and "exercise" mean - who else could it be?

But that is different from "common law." The German Constitutional Court interprets the Basic Law of Germany, but that isn't an example of "common law." Roadrunner 20:42, 20 March 2007 (UTC)

The reason I chose the First Amendment as my exemplar is because the language is familiar to everyone (including many non-U.S. readers), it's not idiosyncratic to any state, because it's an example of judicial interpretation of law that originates elsewhere (which is a key function of the courts that is commonly misunderstood), and because it's such a great example of language that is so terse that it can only acquire enforceable meaning and limits if it is given judicial construction. If it raises this kind of question, then it seems to be a useful educational tool.

Thoughts? Boundlessly 19:10, 19 March 2007 (UTC)

Dear editor Boundlessly: Interesting points. For non-lawyers (i.e., most readers, also known as "normal people"), my off-the-cuff suggestion of using a tort law example perhaps wouldn't work as well as your choice, since tort law is itself primarily judge-made law (common law). Your use of a source of law that is not judge-made -- namely constitutional law -- is a good choice. I reiterate that I agree that the basic thrust of your passage is correct. I'll now add that although I didn't object to its being removed, I also don't object to its being restored to the article. (Hey, how's that for taking a firm stand?) Seriously, I have to recognize that most readers are not experts in most subjects, and that an example, such as the one you provided, that makes a technical subject more understandable for those not versed in that subject is very possibly a good choice. Yours, Famspear 03:47, 20 March 2007 (UTC)

The problem is here is that there is confusion between the different meanings of common law in the sense of Anglo-American legal tradition and common law meaning judge-made case law. The first meaning is important because that is used by judges in common law jurisdictions outside of the United States. The body of First Amendment law by and large is US-centric and US judges rarely cite cases from outside of the United States and the body of First Amendment US law is rarely cited by judges outside of the United States. By contrast, in deciding cases in Hong Kong, judges will cite "common law" precedents from outside of Hong Kong which doesn't have a huge amount of indigenous law. All English case law before 1997 which doesn't contradict current statutory law is authoritative in Hong Kong.

The reason I'd rather not use the term "common law" to mean "case law" is that judges in civil law jurisdictions will refer to case law and a good deal of law in civil jurisdictions is case law, but it isn't "common law." Roadrunner 20:40, 20 March 2007 (UTC)

When one sees the term "common law," 80% of the time it refers to judge-made law (my "connotation 1," now reordered as "connotation 2."). That's just the way it is; we should explain that, because we can't change it. But I would appreciate help of a non-U.S. or non-lawyer to make that clear. Roadrunenr's comment suggests a way out of the dilemma - "common law" means "common law" as common-law lawyers understand it, but there are other kinds of "case law" (especially in non-common-law jurisdictions) that are not "common law." See my comments below. Boundlessly 20:38, 21 March 2007 (UTC)

What you say is true when one sees the term "common law" in the United States. When one sees the term anywhere else in the world it almost invariably means the Anglo-English legal tradition. See comments below. Roadrunner 04:08, 23 March 2007 (UTC)

[edit] Tagged NPOV

I tagged the part that says common law is better for commercial transactions. People have argued this, and to some extent I agree, but it still a POV which is not undisputed.

Roadrunner 20:46, 20 March 2007 (UTC)

The article doesn't use the term "better." It just says the common law has a "strength," one of which is the predictability it tends to lend to commercial transactions. I've had several direct experiences with this as a corporate lawyer in big New York firms, in several deals involving sale of a division between a French or German parent and a U.S. parent. The U.S. lawyers (for both buyer and seller) can almost always give their clients more precise advise and more flexible recommendations than can the French/German lawyers, because the French/German lawyers have fewer binding sources of guidance to work with. Non-lawyers tend to think that the need to look at court decisions is a burden - it isn't a burden, it's a strength, just as science based on many experiments is usually better than science based on fewer. I'm open to better phrasings. Boundlessly 20:51, 21 March 2007 (UTC)

Non-lawyers would rather read a statue, and know the law, than read hundreds of thousands of court cases at random, trying to find a precident somewhere. Not everyone has private access to an expensive network of carefully indexed cases at their fingertips; the very fact that common law is a randomly scattered bunch of ever-changing decisions with an invisible line of best fit traced somewhere across the middle is the exact problem. A firm statement of the principles of law, and the rules that bind it is better for everyone: except judges and lawyers, who only earn money when the law so complicated that their services are necessary. —The preceding unsigned comment was added by 216.254.142.195 (talk) 14:20, 9 April 2007 (UTC).

It's still POV. Thanks to the Delaware Court of Chancery, the US has a very developed and predictable system of corporate law, but whether that system is due to common law traditions is debatable (and to be really nit-picky the Court of Chancery is an equity court not a common law one). After all the French/German lawyers can probably give better advice than a Pakistani, Indian, Nigerian, or Fijian lawyer. One point is that the Continental system of corporations make takeovers a much less common occurence, and whether or not this is attributable to common law is again a debatable point. The second issue is that in common law jurisdictions the need for having lawyers give authoritative readings is much higher since the cost of going to court is much larger. Civil law jurisdictions trade precision for speed.

Just as an concrete example of how judge-made law can bite you. Section 404 of Sarbanes-Oxley is causing a lot of uncertainty because the case law that determines what it means hasn't been written yet, and no one wants to be a test case. In the case of the Securities Act of 1933 and the Securities Exchange Act of 1934, it took decades for the courts to develop detail case law, whereas in a civil law jurisdiction, the legislature would have likely given more guidance in the form of detailed comprehensive laws that leave less room for an unexpected interpretation by the courts.

I can look at my books and try to find references to this argument and try to present both sides.

Roadrunner 04:31, 23 March 2007 (UTC)

Roadrunner 04:31, 23 March 2007 (UTC)

[edit] Contradiction

There is a contradiction that needs to be explained. The first paragraph talks about how the federal courts use common law to interpret the first amendment, but then you have paragraphs that say that there is no federal common law. These two paragraphs are both true, but the contradiction needs to be explained to the layman.

Roadrunner 21:01, 20 March 2007 (UTC)

Dear editor Roadrunner: Ahh, harking back to law school days! I haven't read the whole article, but are you talking only about the following language?

The United States federal government (as opposed to the states) has a variant on a common law system. The courts only act as interpreters of statutes and the constitution (to elaborate and precisely define the broad language, connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(a) above). Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law."). However, there are still some situations where United States federal courts may be permitted to create federal common law rules [ . . . ]

If this is the language that's bothering you, then I agree that it might be a little confusing. You have to read the statement carefully: "There is no federal general common law." Now, read it again: "There is no federal general common law" (bolding added). The key word is "general." The statement is not that "there is no federal common law." One of the key points I remember from law school is that Erie does not say that there is no federal common law. One little word makes all the difference.

If one word makes all of the difference, then the article needs to be rewritten, because it is going to be extremely confusing to layman. Roadrunner 04:05, 23 March 2007 (UTC)

However, maybe the article should be expanded to explain that key word "general" in the context of Erie. And I guess I should read the rest of the article to see if there are other passages you may be talking about. And this article is not really my area of greatest strength. Perhaps some other editors who work this article regularly can explain Erie better than I could. Any comments, anyone? Yours, Famspear 21:46, 20 March 2007 (UTC)

What I meant to to get at is a distinction that is easy to see in most contexts. Federal courts can interpret law made by other bodies - constitution, statute, rule - but they can't make up new laws out of whole cloth that is not based in law created by some other body. The counterexample is shown in Erie v Tomkins: before 1938, federal courts had the power to make up federal common law - for example, the risks that are borne by a trespasser to hazards encountered on the trespassed land, and which reisk are the landowner's duty to ameliorate in the expectation that there will be some trespassers. Thus, if you went into Pennsylvania state court, you would be subject to one set of laws, but if you brought the identical case in federal court across the street in Pennsylvania, you'd be subject to different law. Erie did away with that power. But that power remains open to state courts, and is exercised in contracts, torts, etc. etc. In many (most?) cases in these areas of law, there are no underlying statutes to be interpreted. Famspear and/or Roadrunner, would you care to take a crack at drafting this? This distinction is clear to lawyers, but maybe needs to be made clearer to others.

I'd recommend reversing connotations back to the original way I had them - the connotation of "common law" as judge-made law (or rather, judicial interpretation of law made by others) is far and away the dominant use of the term (except among professors of comparative law and legal historians). Boundlessly 20:31, 21 March 2007 (UTC)

I'd argue that this makes the article extremely US-centric. When most American lawyers talk about "common law" they talk about judge-made case law because the distinction between English and Roman law traditions is not going to come up in a US court case. However, when people outside the US talk about "common law" they almost invariably mean the common law legal tradition. This is even the case in common law jurisdictions like Hong Kong, where the term "common law" includes English statutory law which remains in effect post-1997. When a lawyer in Pakistan or Hong Kong talks about "common law" they are likely to include statutory things like the Federal Rules of Civil Procedure.

When a French, Chinese, or German lawyer talks about "common law", they aren't talking about "case law" which also exists in France, China, and Germany, but rather about the Anglo-American legal tradition. This is even likely to be true in England, where European integration is a big thing a lawyer that talks about "common law" is likely to be using it to contrast it to "continental law".

Since Wikipedia is supposed to write articles from a global perspective, I'd argue that this makes putting definition one as the first one, since that is the meaning of which people will use pretty much everywhere accept for the United States.

I'll leave the order alone for now, and wait for more comments.

Roadrunner 04:05, 23 March 2007 (UTC)

"The certainty and desirability of common law is the reason you see so many contracts having no contacts with New York or London but that nonetheless opt for the certainty and sophistication of New York or U.K. law - I've NEVER seen a deal choose a civil law choice of law, and I've done several deals involving French and German parties. It's the reason you see all the big international deals run through New York and London, and the offshore offices of U.S. and U.K. law firms, and almost never French or German law and law firms. It's the reason you see offices of U.S. and U.K. firms all over the world, but almost no offices of French, German, Italian or Japanese firms in the U.S."

"it's the reason"? It is a reason but there are other reasons: Anglo-centrism and the willingness of other countries other than the US and UK to conduct business in a language other than their own. Along with the prevalence of the English language and its concomitant use as a lingua franca. The establishment of London particularly as a financial centre due to influxes of booty from imperial plunder. Then there's the mafia in the US and its financial influence. They buy lawyers who deal in common law. Like the other big corporations, they can stall punitive legal action by keeping matters in the courts ad inifinitum, while their legal lackeys debate the minutiae of a judgement on a seemingly (and probably) unrelated matter from 1703. The obstacles devised in the US and the UK to the operation of foreign firms without them first making various "concessions".

I suspect that were it not for General Wolfe and the Louisiana purchase, the most common system of law might not be the common law (pun intended).

194.46.245.146 11:21, 10 June 2007 (UTC)

[edit] This text needs rewriting.

"This reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the UK and U.S. Because there is common law to give reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, perhaps close to the line, is almost certainly legal."

Under common law, there is no formal statement of what the law is. That means that each judge applies his or her own personal judgement about which elements of past cases apply to the given case, and then subjectively weigh the degree to which each of those elements will influence his or her final decision, using whichever legal principles he or she feels are bear most strong upon the case at hand.

A civil code where the fine details of the law are formally stated is fundamentally more predictable than one where the fine details are infered indirectly by some third party.

"Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their First Amendment rights apply."

Most countries don't have a "First Amendment", let alone "First Amendment" rights. Rights concerning what can and cannot be freely said or done vary widely from country to country, even within former Commonwealth countries.

Sometimes, lawyers advise their clients to consider settling out of court rather than risk losing due to a bad judgement. I know of one case where a sitting judge once said: "sometimes you can be completely in the right, and should still settle out of court". If the outcome of common law were as simple and certain as the author claims, this wouldn't be the case.

"In contrast, in non-common-law countries, such predictions are more difficult, and thus parties must often leave a bigger "safety margin" of unexploited opportunities."

I feel this claim has not been substantiated whatsoever. —The preceding unsigned comment was added by 216.254.142.195 (talk) 19:33, 29 March 2007 (UTC).

Regarding this statement: "This reliance on judicial opinion is a weakness of common law systems" -- I would argue that the use of the term "weakness" here is indeed "pejorative." However, the language is arguably objectionable not for that reason, but for the reason that the language is non-neutral POV -- just as saying that reliance on judicial opinion is a "strength" of common law systems (see above) is also non-neutral.

We also have a separate Verifiability problem with this language.

Wikipedia could say, however, that "such and such a legal scholar has stated in article X published in Law Review Y on Date Z that reliance on judicial opinion is a weakness of common law systems," etc., etc. That would solve both the POV problem and the Verifiability problem.

I don't think the entire paragraph should be deleted. However, the mere elaboration in the paragraph does not cure the non-neutral POV. Any thoughts anyone? Famspear 17:45, 2 May 2007 (UTC)

Follow-up. Notice that the language was recently changed from "strength" to "weakness" by an anonymous user here: [1] Notice the other POV changes that the user made. Famspear 17:51, 2 May 2007 (UTC)

Notice also this statement: "This reliance on judicial opinion is a weakness of common law systems, and is a significant contributor to the robust commercial systems in the UK and U.S." By changing the word "strength" to "weakness" the anonymous editor corrupted the impact of the sentence. If reliance on judicial opinion is a significant contributor to robust commercial systems, why is that a "weakness"? Is a robust commercial system supposed to be bad? The paragraph needs some work. Famspear 17:55, 2 May 2007 (UTC)

Robust commerercial systems are not the purpose of law; universal justice for all parties concerned is. I reverse the subjective opinions in the entire text to point of the hypocrisy within it; just because something makes money for the wealthy elite does *NOT* make it fundamentally just. The fact that the original tied the two concepts together was proof that it was POV, and flawed.

Here is the language, with my commentary:

This reliance on judicial opinion is [according to whom???] a weakness [should be "strength"? but still needs sourcing and modification to neutralize POV] of common law systems, and is a significant contributor to the robust commercial systems in the UK and U.S. Because there is no statute law [what? there is no statute law in common law systems? Uh, what about the US and the UK, which have plenty of statutes]

NO, don't change the definition of the term in mid-sentence. Common law systems are, by definition, that portion of the system which is *NON* codified, and relies on historical opinion and past rulings (the "common law" of the people), aka the laws of the judiciary, as opposed to legally enacted statutes passed by the sovereign or the people.

to give precise guidance on almost any given issue, parties (especially commercial parties) [commercial parties don't have statutes they can look to? what about the UCC in the United States? No, and again, by definition, that which is statue is *NOT* common law. Sheesh! ] cannot reasonably predict whether a proposed course of action is likely to be lawful or unlawful. This inability to predict the boundries [boundaries] of the law gives wealthy companies more freedom to skirt the boundaries of the law [blatant POV, and unsourced as well

as was the original, you know... that was the very point I was making... you can't just spew econo-political rhetoric in an article about LAW, and expect to be treated seriously. Economics doesn't apply: the law is the LAW, not how you can exploit it to make cash.

], and more power force settlements ["more power force settlement"??? not sure what the writer was trying to say here] from parties less able to afford legal counsel. For example, many commercial contracts are less economically efficient, and thus may create greater wealth through the adoption of risk, because the parties do not know ahead of time whether the proposed arrangement, perhaps close to the line, is legal or not [really? who says so?

I do. Every citizen I've ever spoken to was formally advised that going to court entailed significant risks, even with an "open and shut case". I live in a common law country. If the judges had to act according to the statues of the matter, and thus had less sweeping latitude in these matters, this wouldn't be the case.

The supreme court has refused to hear cases on the basis that they were not yet "ripe"; that is, the underlying series of precedents that support the law weren't yet established. If the Supreme Court of the nation can't tell you what the laws are, then the common law cannot be said to be certain.

This is completely unsource commentary] Newspapers, taxpayer-funded entities with some religious affiliation, and political parties cannot obtain clear guidance on the boundaries within which their rights apply [really? who says so?

Who says they *CAN*? That was my point, when I inverted your text.

]

In contrast, in non-common-law countries, such predictions are more easier [says whom?], and thus parties must adopt less risk, which leads to less economic gain for any single party attempting to exploit a unique market niche by exploiting legal risk.

I'm not sure this material can be salvaged. In any case, it should be moved to a "Critique" section, it should be sourced, and the POV should be ironed out in my opinion. Yours, Famspear 18:04, 2 May 2007 (UTC)

Yup. That's the point I was trying to make. Stop putting in partisan comments, (pro Common law or anti), stop claiming that common law consists of statue law, when by the very origin and definition of the term it does not (it's the most fundamental contrast *IN* law; the law of the goverment, and the law of the judicary, and I'm surprised that anyone claiming to be a lawyer can't figure that out)...

The original version of this language appears to have been introduced here: [2]. Yours, Famspear 18:09, 2 May 2007 (UTC)

OK, I see that this verbiage was probably meant to read: "gives wealthy companies more freedom to skirt the boundaries of the law, and more power [to] force settlements from parties less able to afford legal counsel." Guess I'm a little tired. Famspear 18:17, 2 May 2007 (UTC)

I'm reremoving this paragraph. It originally said strength, now it says weakness. Either way it conveys no facts. Brock 06:04, 6 May 2007 (UTC)

Wanted to add that it shouldn't be in a "Critique" section either. The section is just Boundlessly's opinion. If you were to source it, it would be original research. A critique section (which I don't think this article needs) should be a summary of extant criticisms of whatever, not an original critical essay. Brock 06:22, 6 May 2007 (UTC)

I've been away for a couple months (international commercial transaction, among other things). "Common law" predictability being a "strength" isn't just my personal opinion, it's an opinion shared widely by international commercial lawyers, and you can see the footprints of it anywhere you look.

Common law is law that is not, by the very definition of the term, codified: it's the collective weight of opinions of the whims of judiciary. Once the ruling body codifies and standardizes those laws, you have civil (aka codified statue) law again.

The certainty and desirability of common law is the reason you see so many contracts having no contacts with New York or London but that nonetheless opt for the certainty and sophistication of New York or U.K. law - I've NEVER seen a deal choose a civil law choice of law, and I've done several deals involving French and German parties. It's the reason you see all the big international deals run through New York and London, and the offshore offices of U.S. and U.K. law firms, and almost never French or German law and law firms. It's the reason you see offices of U.S. and U.K. firms all over the world, but almost no offices of French, German, Italian or Japanese firms in the U.S.

• shrug* That doesn't tell me anything about the ability of the average man on the street to interpret the law without access to a law library, now does it? You can't

make a generalization about the law that only applies to the 1% of the populace who are able to afford the services of a $600/hr lawyer.

And as for your economic theory, it's not only POV, it's also confounded by thousands of other variables. Perhaps lack of predictability in the law is an asset for those wealthy enough to better manage the underlying risk? Perhaps the taxation in the US and UK laws are different than elsewhere? Perhaps the other labour laws play a role? Perhaps import duties and other factors play a role?

Your personal conceit does not prove the facts you wish it to.

The paragraph does convey a very important concept, that "common law" is the way the commercial world works. It also explains why it works that way. No, it's not provable as an "issue of fact." But this is an encyclopedia, not a motion for summary judgment, so I'm not sure that "no facts" is either accurate or relevant.

It doesn't explain anything; it's at best a personal economic theory, and at worse blatant propaganda. If you can't prove your theory as an "issue" of fact, leave it out.

I'll find a law review article or something like that to cite, and we can rely on that author's opinion instead of a nameless consensus opinion, the evidence you can see all around you, and the commercial reality of how deals get done and who does them. Does that make everyone happy? Boundlessly 22:18, 21 May 2007 (UTC)

Why not find an idependent economist's assessment, instead? Lawyers have a strong financial interest in maintaining legal systems that are as complex and difficult to understand as possible. Claiming that codified civil law is "worse" than a scatter series of ad-hoc judicial opinions is a counter-intutitive claim, and should be supported by someone other than those parties who benefit directly from its propogation.

"Most countries don't have a "First Amendment", let alone "First Amendment" rights. Rights concerning what can and cannot be freely said or done vary widely from country to country, even within former Commonwealth countries."

Common law would appear to allow fluctuation of rights within the originating countries too. The use of internal exile, detention without trial, non-jury trials, state murder, monitoring of citizens without their consent and other abitrary impositions have all been practised in the UK. These were long before 9/11. Common law didn't stump up the goods for a lot of people in Northern Ireland who hadn't committed any crimes. Well, that is, things that wouldn't be considered a crime in countries. For example, practising one particular denomination of a religion, verbal criticism of the state, electing to converse in another European language etc.

194.46.245.146 11:36, 10 June 2007 (UTC)