Monday, October 4, 2010

American Common Law Smashed in 1938 32

A Brief Summary of Common Law from Wikipedia:
= = = = = = = = = =
Common law, also known as case law, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedence weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.
“In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.
“Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia"

In 1938, the Supreme Court denied the use of common law in the federal courts system, though it had been a benchmark for 150 years. Here is a summary of that revolutionary decision:

ERIE RAILROAD CO. vs. THOMPKINS, 304 U.S. 64, 82 L. Ed. 1188).
Complete text of 1938 decision:

Explanation (from Wikipedia):

= = = = = = = = = =

“Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution.

“In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938), overruled earlier precedent, and held "There is no federal general common law," thus confining the federal courts to act only as interpreters of law originating elsewhere. E.g., Texas Industries v. Radcliff, 451 U.S. 630 (1981) (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.

Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); see also International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding, but that is one of the handful of federal common law actions that survives today); National Basketball Association v. Motorola, Inc., 105 F.3d 841, 843-44, 853 (2d Cir. 1997) (noting continued vitality of INS "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.


= = = = = = = = = =

My own arguments against the 1938 decision

Common law precedent means that it was developed as a result of real world disagreements rather than ideology. Reality trumps diktat (see the assumptions in blog post #1).

Under common law, a particular decision is made impersonally by comparison to the same situation faced elsewhere by others. The less personal a judicial decision, the better for the commonwealth.

The assumption by the progressive reformers who “won” this Supreme Court of the United States decision is that ideology trumps reality and that present day politicians know more than hundreds of years of court history. The reformers sought a system in which all law comes from the people through,and only through, their current legislators. Overthrowing common law was not necessary to improve society, but it was done anyway in pursuit of a subjective utopia of unlimited democratic power [rather than a republic of limited powers]. To counter this hubris, I offer the following quote:

"Law represents the effort of man to organize society;
governments, the efforts of selfishness to overthrow liberty".

– Henry Ward Beecher 1813 - 1887

The decision has made the Supreme Court more and more ideological, ultimately politicizing the body, which is where we are today. We have a court of nine individuals of strong political opinions which can be reliably forecast in advance. They are responsible, as a body, for the ultimate decisions of law. Such partisan friction is potentially to the detriment of us all.

In spite of the “supremacy of federal law,” under this decision federal judges sometimes have to ape or imitate state courts or remand issues to the state level, an unnecessary and unprincipled contradiction.

The logic and inherent fairness of case law, being the heart of common law, is too powerful and valuable to reject. Thus, in spite of the absolute language of the 1938 decision, of necessity, common law does continue in certain federal cases as outlined in red above. Therefore the 1938 decision courted a foreseeable categorical inconsistency which makes that decision erroneous.

When we get into the Greek-like mythological forces of Clive Barker's The Great and Secret Show, I will contend that common law preserves the purity of Quiddity. The 1938 decision pollutes Quiddity (partly through a tolerance of inequity and unfairness and partly through group-think and hysteria by legislators, viz, the “Patriot Act” of 2001) and invites an attack on the good qualities of the people.


The progressive attack on common law has dis-served the American people, allowed citizens with identical legal problems to be treated differently, and ultimately politicized the Supreme Court itself. This seems to be a victory for ideological arrogance that is, at least, devoid of significant cognitive bias. Further examples of ideological conflict in this blog will seldom be so pure.

The next blog post deals with the greatest political event in recorded history – Magna Carta.

No comments:

Post a Comment