Common Law Definition
Common law definition is another body of judge-made law. common law definition consists of the rules and principles developed throught costum and precedent. The common law is a vast an unwritten body of legal rules and doctrines established through hundreds of years of dispute resolution that reaches past the founding of this country and across the atlantic to England. For centuries prior to the settlement of the U.S.colonies, English courts "discovered" the doctrines people traditionally had used to resolve disagreement. Judges then applied these "common" laws to guide court decission. The resulting judical decision, and reasoning that supported them, came to be known as English common law, which became the foundation of U.S. common law.
Eventually, common law grew to reflect more than the problem-solving printciples of the common people. Today. U.S. common law rest on the presumption that prior court rulings, or precedents, should guide future decission. The essence of precedent, stare decisis, is that courts should follow each other's guidance. Once a higher courts to try to apply the same principle to similar facts. This establishes consistency and stability in the law.
Under the rule of stare decision of a higher court, such as the U.S. Supreme Court, Establishes a precedent that is binding on lower courts. A precedent of the U.S. Supreme Court binds all lower federal courts throughout the country, and the decision of each circuit court of appeals bind the district courts in its own circuits. Similarly, lower state courts must follow the precedent of their own state appellate courts ana the state supreme court. However, courts in Rhode Island do not need to follw precedent established in wyoming, and federal district courts are not bound to follow precedent established by appellate courts in other federal circuits. In fact, different federal appelate courts often reach directly conflicting decisions.
Even when the power of stare decisis is at its greatest, lower courts may choose not to adhere to precedent. Courts may, at the risk of the judges' credibility, simply ignore precedent. After all, the common law is not written down in one easily accessible volume. Instead, the common law must be discovered through research in the thousands of court decision collected into centuries of volumes, called examining a new but similar question may decide to modify precedent, this is to change or revise the precedent, to reflect changed realities and perceptions. Thus, the U.S. Supreme Court might find that contemporary attitudes and practice no longger support a 20-year-old precedent that permitted government to maintain the secrecy of computer compilation of public records. Given the rapid disappearance of paper records in government, the court might modify its precedent on application of the federal Freedom of information Act (FOIA) to find that computer compilation, like paper records, must be available unless disclosure clearly violates personal privacy.
Courts also may distinguish from precedent by asserting that diference between the current case and the precedent case outweigh any similarities. Thus, for example, the supreme court has distinguished between newspaper and broadcasters in terms of any right of public access. The court did not apply that reasoning five years later when it considered virtually the same question as applied to newspaper. Newspaper owners, publisher and editors, the court said, are private, independent members of the press who enjoy a virtually unabridgable right to control the content of their pages.
Finally, courts will occasionally, but only occasionally, overturn precedent outright and reject the fundamental premise of that decision. This is a rare and radical step and generally occurs only to remedy past injustices or to reflect a fundamental rethinking of the law. In one such instance, the Supreme Court in 1997 overruled a 12-yeard-old court precedent that had prohibited public schools. The court said the precedent had mistakenly confused government efforts to fulsill its mandate to educate all children with unconstitutional government establishment of religion.
Book of Civil law that use in this post :
-Robert Trage, Joseph Russomanno and Susan Dente Ross, 2007. The Law of Journalism and Mass Communication. McGraw-Hill: United States.
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Labels: Civil Law