Sociology Index

COMMON LAW

Common law derives from feudal England where it had become the practice for the King to resolve disputes in accordance with local custom. Customs which were recognized throughout the country were called common custom and decisions made by the King and by subsequent courts set up to settle disputes became known as common law.

Common law is considered a source of law which means that the cases settled over the past 600 years themselves become part of the law and these precedents become binding on present and future judges. Another source of law is statutes.

Back to the Future? Unearthing the Theory of Common Law Constitutionalism - Thomas Poole, School of Law, University of Nottingham - Rise of a new influential, theory of public law: common law constitutionalism.

The theory can be seen as a response to a ‘crisis’ within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence (and potential politicization) of judicial review; constitutionalization of the EU; and trends towards globalization.

The core of argument underlying the theory is elucidated by means of an analysis of the work of a number of leading public law scholars. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity.

We Do This At Common Law But That In Equity - Andrew Burrows, St Hugh's College Oxford 
This article argues that lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. In developing this argument, three categories within English private law are recognized. First, where common law and equity co-exist coherently, and where the historical labels of common law and equity remain useful terminology. Second, where common law and equity co-exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke. And third, where common law and equity do not co-exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product.

Information, Litigation, and Common Law Evolution 
Keith N. Hylton, Boston University 
It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. Trends can develop favoring the better-informed litigant whose case is also meritorious. Although the model does not suggest an unambiguous trend toward efficient legal rules, it does show how private information from litigants becomes embodied in common law, an important part of the theory of efficient legal rules.

The Common Law in Cyberspace
by Tom W. Bell
97 Mich. L. Rev. 1746 (1999) (reviewing Peter Huber, Law and Disorder in Cyberspace (1997))
Abstract: Although Law and Disorder in Cyberspace gets a great deal right in boldly proposing to abolish the FCC and rely on common law courts to regulate the telecosm, an untenable distinction between the process and substance of common law runs through the text. That fundamental flaw opens a rift through which creep a number of lesser errors. Peter Huber accords antitrust law, despite its reliance on legislation and inconsistency with common law proper, inexplicable deference. In an analysis aggravated by suspect claims about the history of telecommunications, he promotes mandatory interconnection at the expense of property and contract rights. Contrary to Huber's account, moreover, common law consistently excused telephone companies from any general obligation to carry their competitors' traffic. I thus suggest that we liberate telephone companies from mandatory interconnection by letting them buy back full rights to their facilities. Law and Disorder in Cyberspace mischaracterizes copyright as an agreeable child of common law. To the extent that copyright represents a response to market failure, it perhaps infringes on common law rights for good reason. But infringe it does. I thus propose that copyright retreat where common law rights suffice to encourage creative expression. Although Huber correctly diagnoses the collectivism afflicting wireless communications policy, his preferred treatment, ownership in fee simple of the spectrum, contains a dangerously high a dose of property rights. I offer the more gentle common law solution of treating rights to the spectrum like rights to trademarks.

Common Law, Equity, and American Public Administration 
Richard T. Green, University of Utah 
This article evaluates the claims of those who advocate the use of common law as a corrective to the statutory and rule-based excesses of the American administrative state. Their claims are assessed in light of common-law history and in terms of current administrative law. Although many claims are exaggerated or simply wrong, there are some aspects of common law that deserve attention in public administration. These are explained from the perspective of common-law evolution. Common law developed in a very pragmatic and experimental fashion and therefore displays some qualities public administrators will find useful, especially in the adjudicative realm of agency decisions, but more broadly as well. A model with five features of common-law practice is presented for public administrators to use in improving an agency’s decision making under law.