The article is written by Tejaswini Kaushal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article seeks to explain the concept and features of Common Law as well as its history and relevance in the United States of America.

Table of Contents


The body of law formed by judges and similar quasi-judicial bodies by virtue of being declared in written decisions is known as ‘common law’, sometimes known as judicial precedent, judge-made law, or case law. The fact that common law emerges as precedent is its distinguishing feature. When the parties can’t agree on what the law is, a common law court looks back at previous precedent from relevant courts and applies the principles from those cases to the current facts. If a comparable matter has previously been decided, the court is typically compelled to accept the reasons employed in the previous ruling, a principle known as stare decisis. If, on the other hand, the court determines that the current dispute is fundamentally different from all past instances and that legislative legislation is either silent or vague on the matter, judges have the ability and responsibility to settle it. The court issues an opinion in which it explains why it made the judgement, and those reasons are combined with previous decisions to create a precedent that will bind future judges and litigants. In opposition to and on an equal footing with statutes enacted through the legislative process and regulations established by the executive branch, common law, as a body of law created by judges, stands in contrast to and on an equal footing with them. All common law systems are founded on the idea of stare decisis, which states that cases should be handled according to consistent principled standards such that comparable circumstances produce similar outcomes.

At present time, one-third of the world’s population lives in common law jurisdictions or in systems mixed with civil law. These countries include Antigua and Barbuda, Australia, the Bahamas, Bangladesh, Barbados, Belize, Botswana, Burma, Cameroon, Canada, Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, as well as the United States of America (both the federal system and 49 of its 50 states).

Download Now

Concept of Common Law

Three definitions of Common Law

  1. That which draws its power and legitimacy from the people’s general consent and long-standing habit. The English system of jurisprudence, which was later adopted in the United States, is based on precedent rather than legislation.
  2. Case law is the traditional law of a particular place or region. When judges decide on particular disputes or cases, they establish the law. The body of law encompasses both unwritten English law and legislation enacted prior to the establishment of the United States.
  3. There were two sorts of courts in Old England: courts of law and courts of equity. The judge at the court of law implemented the law. Judges ‘made’ law, generally in equity, as circumstances that were not covered by legislation arose over time. This is referred to as ‘common law.’

Common law legal systems differentiated from civil law legal systems

The American legal system functions on the common law system which needs to be distinguished from the civil law system. Definition 2 of Black’s Law Dictionary, 10th Edition distinguishes ‘common law’ countries and legal systems from ‘civil law’ or ‘code’ jurisdictions and legal systems. Court judgments are given enormous weight under common law regimes, and they are seen as ‘law’ with the same power as laws. In making judgments, common law nations mainly depend on prior court decisions. In US common law system, judicial rulings in preceding court cases are crucial to the court’s decision-making process, even when a statute is being questioned. Further, common law courts have had the right to establish law when no legislative legislation existed for almost a millennium, and statutes mean what courts interpret them to mean. 

The civil law system is the legal system that dominates in Europe and other non-Islamic, non-common law countries. Civil law systems rely more on codes, which expressly lay out the principles of giving a judgement for particular conflicts, rather than on court precedent. Courts in civil law jurisdictions lack the authority to act if there is no statute. In comparison to a common law judge in identical circumstances, civil law judges tend to pay less weight to court precedent, which implies that a civil law judge considering a case has greater leeway to interpret the wording of legislation independently and therefore less predictability. The court’s decision won’t be enforceable or maybe even meaningful in decisions affecting other parties if the judge must deviate from the letter of the law to resolve a dispute.

Origin of Common Law in the US

Common law is the older, more conventional source of law, and legislative authority is merely a layer on top of that foundation. Courts have had parallel and co-equal authority to make law since the 12th century. 

The common law arose from the procedures of the English kings’ courts in the decades following the Norman Conquest in 1066 and was so termed because it was “common” to all the king’s courts across England. Much of England’s legal work took place in the local folk courts of its numerous shires and hundreds prior to the Norman Conquest. The common law had progressed far enough by the time of the rediscovery of Roman law in Europe in the 12th and 13th centuries to prohibit a Roman law reception as it occurred on the continent and obtained a significant Roman influence as well. It reached the American land in the form of English influence owing to the British rule in place.

Reception legislation used to spread Common Law to the colonies and the Commonwealth

Reception legislation is a statutory law passed once a former British colony gains independence that allows the new nation to embrace pre-independence common law to the extent that it is not explicitly rejected by the new nation’s legislative body or Constitution. Because it is important to employ a large and predictable body of law to control the conduct of residents and enterprises in a new state, reception legislation often takes English common law from before independence, as well as precedent derived from it, as the default law. With the exception of Louisiana, every state in the United States has either implemented reception legislation or recognised the common law by judicial opinion. 

The adoption of common law in the newly independent nation, however, was not a certain conclusion and was a contentious issue. Following the American Revolution, there was widespread suspicion and antagonism toward anything British, including the common law. Lawyers and the common law heritage were seen as dangers to the fledgling republic by Jeffersonians. The Jeffersonians supported a legislatively created civil law that was subject to political control over the common law, which was developed by judges who were, by design, removed from the political process. The common law, the Federalists felt, was the birthright of independence. After all, common law guaranteed the basic rights to “life, liberty, and the pursuit of happiness.

Even supporters of the common law method acknowledged that it was not the best match for the newly independent colonies: a shortage of printed legal information hampered judges and attorneys alike. Prior to Independence, Tory attorneys kept the most extensive legal library, which vanished with the loyalist exodus, and the capacity to produce books was severely curtailed. John Adams, a lawyer who eventually became President, remarked that he “suffered greatly from a lack of literature.” In 1803, attorneys in Massachusetts contributed their books to start a law library to help fund this most fundamental demand of a common law system.

English law continued to influence American common law for several decades after independence, as seen in Byrne v. Boadle (1863), the first case to use the res ipsa loquitur concept.

Phasing out of Latin maxims and increased flexibility in the doctrine of stare decisis over time

Ancient maxims had a significant part in common law adjudication far into the nineteenth century. Many of these maxims had their origins in Roman law, having come to England before the arrival of Christianity, and were frequently proclaimed in Latin, even in English rulings. In many instances, such as “One cannot be a judge in one’s own cause,” as stated in Dr. Bonham’s Case, rights are reciprocal to responsibilities, and so on, are still used in common conversation. The common law was presented as a compilation of such maxims in 17th and 18th-century judicial decisions and treatises, such as those of Lord Chief Justice Edward Coke.

In the late nineteenth century, starting in the United States, reliance on ancient maxims and inflexible devotion to precedent, no matter how old or ill-considered, came under scrutiny. Oliver Wendell Holmes Jr. expressed in his renowned piece “The Path of the Law” that it was unpleasant to “have no better reason for a rule of law than that so it was laid down in the time of Henry IV”. He further expressed that it was much more repulsive if the premises on which it was established had long ago disappeared, and the rule was essentially a slavish replica of the past. The study of maxims may suffice for “the man of the now,” but “the man of the future is the man of statistics and the master of economics,” according to Justice Holmes.

The use of outdated maxims is no longer recommended. Today’s common law rulings are based on precedent as well as policy judgments derived from economics, the social sciences, business, foreign court decisions, and other sources. Although the extent to which these external elements should impact adjudication is a point of contention, it is undeniable that judges do rely on experience and learning from ordinary life, other fields, and other jurisdictions.

Procedural merging of law and equity from the 1870s through the 20th century

Parallel systems of law, like offering monetary damages, with cases reviewed by a jury at either party’s request, and equity, like fashioning a remedy to fit the situation, including injunctive relief, heard by a judge, existed far into the twentieth century in the United States. Law and equity were procedurally divided in the United States federal courts: the same judges might hear either type of case, but a specific case could only pursue causes in law or equity, and the two types of cases followed different procedural procedures. This created difficulty when a lawsuit demanded both monetary and injunctive relief.

The new Federal Rules of Civil Procedure, which went into effect in 1937, unified law and equity into a single type of action known as a “civil action.” Matters that were “common law” (as opposed to equity) as of 1791, the year when the Seventh Amendment was enacted, are still subject to the right of any party to request a jury, whereas “equity” issues are resolved by a judge.

Delaware, Illinois, Mississippi, South Carolina, and Tennessee, for example, continue to have separate courts of law and courts of chancery, such as the Delaware Court of Chancery. The appellate courts in New Jersey are unitary. However, the trial courts are divided into two divisions: Chancery and Law.

Pleading under Common Law and its termination in the early twentieth century

For centuries, up until the 19th century, the common law in the United States of America recognised only a few types of action, requiring meticulous drafting of the opening pleading, i.e., a writ, to fit into one of them: debt, detinue, covenant, special assumpsit, general assumpsit, trespass, trover, replevin, case (or trespass on the case), and ejectment.

A pleading had to be written to fit several technical criteria, including appropriately classifying the matter into the appropriate legal category (pleading in the alternative was not allowed), and employing precise “magic words” encrusted through the ages. An action by a pro se party was nearly impossible under ancient common law pleading requirements, and there was sometimes much procedural jousting at the opening of a case over minor phrasing concerns.

The elimination of common law pleading requirements was one of the key changes of the late 19th and early 20th centuries. A plaintiff can start a lawsuit by providing the defendant with a brief and simple explanation of the facts that formed the basis of the alleged harm. This change shifted the focus of courts away from word-by-word analysis and toward a more reasonable examination of the facts, allowing considerably more people to seek justice.

Features of a common law system

  1. There will never be a compulsorily written Constitution or codified laws.
  2. Only the same court or the law may typically overturn a decision issued by the higher courts.
  3. Generally, anything that isn’t expressly forbidden by law is allowed.
  4. Precedents are used to resolve legal issues in the common law system.
  5. In the common law system, an adversarial trial is used to resolve disputes. Adversarial trials take a long time and rely heavily on oral arguments.
  6. In the common law system, the court plays a crucial role. They are enacting laws on their own, independent of the state. When it comes to making decisions, they prefer freedom from the state.

Features of the US Common Law System

The key ideas that make up the American legal system are listed below. This chapter and others in this book go into deeper information about each of these. To provide the reader with an overview of some of the fundamentals of American common law, they are outlined here.

The Stare Decisis principle and the effect of precedent

The requirement that lower-level courts within the same jurisdiction must follow the decisions of a higher-ranking court is the common law’s fundamental premise. This tradition of stare decisis has led to the development of a body of law that is somewhat predictable and consistent.

Hierarchy of American courts

The degree to which a judgement made by one court will be binding on another court is greatly determined by the level/hierarchy of the courts. The United States District Courts are the trial-level courts in the federal court system; the United States Court of Appeals is the first level court of appeal, and the United States Supreme Court is the ultimate arbiter of the law.


In American law, the word ‘jurisdiction’ has two significant meanings. The official authority of a court to exercise judicial authority over a certain topic is one definition of the word ‘jurisdiction’. Although the phrase is most frequently used in relation to a court’s jurisdiction over specific subjects, it can also refer to matters that are inside or outside the purview of any other political body.

Second, the location of courts at different levels is determined by a system of ‘jurisdictions’ that form the foundation of the federal court system. There is only one Supreme Court, although there are 94 district courts and 13 circuits within the court of appeals in the United States of America. Furthermore, every state’s court system has its own ‘jurisdiction’. Which court rulings become binding precedent depends on the jurisdiction where the matter first came up.

Persuasive v. binding authority

Some of the many legal sources that are propounded by the court are seen as ‘binding’, while others are only regarded as ‘persuasive’. A court may fully ignore non-binding precedent, i.e., not even consider it to be persuasive. The use of stare decisis principles directly affects the question of whether authority is binding or persuasive.

Primary v. secondary authority

Primary and secondary sources of law can be used to separate the numerous sources of law. Primary legal materials may be required reading for a particular court or they may just be persuasive. They may be convincing or enforceable depending on several variables. Secondary authority is never a legal requirement and is not legislation in and of itself.

However, a court may consult secondary sources of law for advice on how to handle a specific situation. Secondary authority is helpful for learning more about a specific topic in general and for locating cases.

Functioning of the American Judiciary 

Courts are expected to limit their rulings in resolving a dispute to the most specific terms possible as a matter of jurisdiction. This restriction pertains to the rule of dicta, according to which elements of an opinion that are not necessary for resolving the specific issues before the court based on the facts put forth by the parties have less precedential weight.

Dual-Court systems

The American legal system is built upon the federalism system, also called a decentralised system. The national or federal government itself has many powers, but the states are also given charge of those powers that aren’t expressly listed as being only federal. State courts and federal courts are the two categories of courts in the US. The majority of state court systems are identical to federal court systems. State and federal cases are handled independently under the dual court system in the United States. 

Connections between various legal sources

The degree to which the many sources of law, from both the state and federal systems, interact with one another is one of the more nuanced ideas in American jurisprudence. The relative importance of numerous legal sources, as well as that of the state and federal legal systems, is defined by a complicated series of regulations.

Benefits of a common law system in the US


Legislation is clarified, expanded upon, and implemented by the common law. The phrasing of many Acts of parliament is generic and wide, offering only general information about the legislation. The emphasis is not on how the law should be applied in specific circumstances. Judges play an important role in common law by reviewing individual circumstances in each case, enforcing the law based on their conclusions, and interpreting pertinent legislation.


In most cases, the concept of precedent is more successful since it ensures that the legal system is consistent and stable. In hearings and trials, participants can realise that conclusions are determined exclusively on precedent, not on arbitrary judgement or personal beliefs. Precedents are established by senior judges in higher courts, which provides credibility to the system owing to the judges’ experience.

Unforeseen circumstances

Like on the point concerning specificity, common law can respond to events, circumstances, and situations that lawmakers did not expect or foresee. It is difficult for parliament to legislate for every potential issue, circumstance, or action that could occur in a community. Responses to real-life events can be developed and examined using common law.

Efficiency and quickness

Parliamentary law is less flexible, speedier, and more responsive than common law. Common law frequently reacts and adapts quickly to community expectations, shifting social ideals, and other factors. Courts and judges can decide on changing needs while still analysing one case, thanks to institutional law change bodies or parliament years. Because the courts are not constrained by the procedural and political restrictions that govern legislative processes, they can affect law reform more quickly.

Independence from the government and political forces

In comparison to their legislative counterparts, courts and judges are not influenced or dominated by ideology or party politics. Therefore, unpopular or contentious legislative amendments can be enacted by the courts, even if they would undermine or harm a politician’s chances of re-election if enacted by Parliament. Abortion is legal in three states by common law, but the legislatures in those jurisdictions have refused to pass legislation on the subject. By providing an effective rule of law for economic players, common law systems have aided and accelerated economic progress in the country.

Examples of Common Law

All past legal judgements issued by judges in common law courts form the basis of common law. Judges search for important characteristics that make the current case comparable to previously processed common law cases, but the precise circumstances differ per case. The judge’s ruling must be made public and stated in writing. Doctor-patient confidentiality, common copyright law, etc. are all instances of common law. One more example of common law in operation today is the notion of common-law marriage, which grants couples who are not legally married rights identical to those who have a marriage license if certain circumstances are satisfied.

Key principles of Common Law in the US

Common law adjudication

To identify ‘what the law is’ in a specific circumstance in a US common law jurisdiction, various steps of investigation and analysis are necessary. First, the facts must be established, and then there’s the matter of finding any applicable legislation and cases. Further, one must extract the concepts, parallels, and declarations of what is significant to numerous courts in order to predict how the next court will decide on the facts of the case. Later judgments, as well as those of higher courts or legislatures, have more weight than earlier cases and lower court decisions. Finally, all of the lines drawn and the arguments stated are combined to determine what the law is. The law is then applied to the circumstances. In the United States of America, a court’s judgments are only valid in that jurisdiction, and even within that jurisdiction, certain courts have greater power than others. Furthermore, in the United States of America, as well as in most other countries,  appellate court rulings are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, whereas lower court decisions are simply persuasive authority and are not binding. Complexity arises from interactions between common law, constitutional law, statute law, and regulatory law.

Common law changes to accommodate evolving social needs

Oliver Wendell Holmes Jr., an American jurist and legal scholar, cautioned in the book ‘Law, Morals, and Justice’ that “the proper derivation of general principles in both common and constitutional law … arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions“. Furthermore, Justice Cardozo, an American lawyer and jurist, noted the “common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively”, but “its method is inductive, and it draws its generalizations from particulars.” 

Statutory law is less pliable than common law. This is because: 

  1. The common law courts are not bound by precedent and can reinterpret and change the law without legislative interference to conform to changing trends in political, legal, and social thought (where a very strong cause is proved). 
  2. The common law evolves in a series of incremental stages that progressively iron out all the intricacies, so that the law can change significantly over a decade or more without a dramatic rupture, lessening disruptive consequences. 

In contrast to common law incrementalism, the legislative process is extremely difficult to initiate since legislators typically wait until a situation becomes unbearable before taking action. Legislative changes are sometimes big, abrupt, and disruptive as a result of these factors. It may be altered in a variety of ways, sometimes for the better, sometimes for the worse, and sometimes with unanticipated results. 

In the case of Thomas v. Winchester, New York’s highest court ruled in 1852 that mislabeling a poison as a harmless herb and then selling the mislabeled poison via a dealer who would be expected to resell it put “human life in imminent danger”. This rationale was used by Thomas to make an exemption to the privity criterion. Statler v. Ray Mfg. Co. held in 1909 that a coffee urn manufacturer was liable to a person who was injured when the urn exploded because the urn was of such a character innately that, when put to the purposes for which it was designed, it was liable to become a source of great danger to many people if not appropriately constructed.

Despite this, the privity rule has survived. Even though there was no question that the wheel was made of dead and ‘dozy’ wood, quite insufficient for its purposes, the court in Cadillac Motor Car Co. v. Johnson, decided in 1915 by the federal appeals court for New York and several neighbouring states, held that a car owner could not recover for injuries caused by a defective wheel when the car owner had a contract only with the automobile dealer and not with the manufacturer, even though there was no question that the Cadillac court was ready to admit that precedent permitted exclusions for an object harmful in nature or likely to become so in the typical usage anticipated by the seller. One who manufactures articles dangerous only if defectively made or assembled, e.g., furniture, pictures hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in cases of willful injury or fraud, the Cadillac court concluded.

Finally, in the landmark decision of MacPherson v. Buick Motor Co. in 1916, Judge Benjamin Cardozo of the New York Supreme Court drew a larger theory from these precedent judgments. The circumstances were nearly identical to those in the Cadillac case a year before: a wheel from a wheel manufacturer was supplied to Buick, through a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Cardozo established a new rule that had never been used before, but which may be inferred as a synthesis of the item of danger concept expressed in them, just expanding it to foreseeable risk even if the reasons for which it was meant were not a cause of significant danger. MacPherson makes pains to show itself as a natural evolution rather than a radical departure. Cardozo continues to follow Winterbottom’s initial premise of avoiding absurd and outrageous outcomes, creating a new boundary in the last statement stated above: “There must be awareness of a risk, not just possible, but probable“. However, while keeping to the basic idea that some sort of barrier is required, MacPherson overruled past common law by making the traditionally dominating feature in the boundary, namely the privity formality coming from a contractual connection between people, completely irrelevant. Rather, the nature of the product sold and the predictable uses that downstream purchasers would make of it would be the most essential factors at the border.

The preceding paragraphs’ account of the genesis of negligence law highlights two key principles: 

  1. Common law grows under the supervision of judges, who have “created law” for hundreds of years.
  2. In the long term, the reasons behind a choice are frequently more significant than the outcome in a specific situation. This is why, rather than the black-and-white standards found in legislation, court opinions are frequently rather extensive and provide rationales and policies that can be weighed with judgement in future situations.

Publication of decisions

All legal systems rely on the written publication of the law in order for it to be available to everyone. Lawyers, judges, and the general public can consult common law decisions in law reports. In the US, the publication of decisions is a necessity to ensure the efficient functioning of its legal system. Massachusetts was the first state to create an official Reporter of Decisions after the American Revolution. As new governments sought legal guidance, they frequently turned to the Massachusetts Reports for authoritative precedents to use as a foundation for their own common law. Until after the Civil War, the federal courts of the United States relied on private publishers, and it wasn’t until 1874 that publishing became a government duty. West Publishing, based in Minnesota, is the country’s biggest private-sector publisher of legal reports. Government publishers often simply publish decisions as is, but private sector publishers frequently provide indexing, as well as references to major concepts of common law, editorial analysis, and other finding aids.

Interplay of the constitution, statutes, and the executive branch regulations with Common Law

The common law is essential to comprehending practically all key areas of law in common law legal systems. For example, the basic law of contracts, torts, and property does not exist in legislation in England and Wales, English Canada, or most states in the United States, but solely in the common law. A Michigan statute that established rules for solemnising marriages, for example, did not abolish pre-existing common-law marriages, according to the Supreme Court of the United States in Meister v. Moore in 1877, because the statute did not affirmatively require statutory solemnization and was silent as to pre-existing common-law marriages.

In almost all areas of the law, even those with a statutory framework, such as contracts for the sale of goods or criminal law, legislature-enacted statutes or agency-promulgated regulations generally only provide terse statements of general principles, leaving fine boundaries and definitions to the interstitial common law. To determine the specific law that applies to a given set of circumstances, one must first seek prior rulings on the subject and then reason from those decisions.

Legislators in common law jurisdictions (as opposed to ‘civil law’) work with the assumption that statutes will be interpreted in light of the pre-existing common law. This was also opined by the United States Supreme Court in the case of United States v. Texas in 1987. Most criminal laws in the United States, for example, are essentially codifications of pre-existing common law. Modern statutes frequently leave several terms and fine distinctions unstated in reliance on this assumption. For example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions would be resolved in the future by the courts based on what they then understood to be pre-existing common law. Many current American law schools teach the common law of crime as it existed in England in 1789 because that centuries-old English common law is required for interpreting modern criminal legislation.

The question of whether common law crimes could exist in the United States arose as a result of the transition from English law, which had common law crimes, to the new legal system established by the United States Constitution, which prohibited ex post facto laws at both the federal and state levels. It was determined in the case of United States v. Hudson Goodwin (1812), which held that federal courts had no authority to establish new common law offences and that the offence and penalty must always be defined by a constitutional act.

Many states, however, keep some common law offences. In Virginia, for example, the concept of what constitutes robbery is only found in common law, and the robbery statute only lays out the punishment. The common law of England, insofar as it is not contradictory to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full effect within the same, and constitute the rule of judgement, save as revised by the General Assembly, according to Virginia Code Section 1-200.

Some statutes in the US, in contrast to the statutory codification of common law, replace common law, for example, by creating a new cause of action that did not exist in the common law or by legislating to overrule it. The tort of wrongful death, for example, permits specified people, generally a spouse, child, or estate, to claim damages on the deceased’s behalf. Because there is no such tort under English common law, any country without a wrongful death statute will not allow a wrongful death claim. Say, if a wrongful death legislation exists, the compensation or other remedy available is restricted to the act’s remedy, typically, an upper limit on the amount of damages. Because courts usually accept the legislature as superior in defining the scope of judge-made legislation unless it violates some ‘second order’ constitutional law provision, courts interpret statutes that create new causes of action carefully. This approach is more heavily applied in areas of business law, where predictability is more important, and less so in torts, where courts acknowledge a larger obligation to do justice. If a tort is founded in common law, all traditionally recognised damages for that tort may be pursued, regardless of whether such damages are included in contemporary statute law. A person who is injured as a result of another’s carelessness may claim for medical expenses, pain and suffering, loss of wages or earning ability, mental and/or emotional anguish, loss of quality of life, disfigurement, and other damages. These damages do not need to be codified because they already exist in the common law system. However, without a wrongful death statute, the majority of them expire when the plaintiff dies.

The power of the federal court to evaluate and nullify unlawful acts of the federal executive branch is outlined in Article III, Sections 1 and 2 of the United States Constitution. Marbury v. Madison (1803) was the first major case on ‘judicial authority’. Later rulings interpreted Article III’s ‘judicial power’ to provide federal courts with the authority to evaluate and reject any action taken by Congress or a state that is in violation of the Constitution.

Limiting the scope of stare decisis by allowing overruling of precedent

The federal courts of the United States are organised into twelve regional circuits, each of which has its own circuit court of appeals, plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation. One circuit court’s decisions are binding on the circuit’s district courts and the circuit court itself, but only as  persuasive authority on sister circuits. District court rulings are just persuasive, not binding precedent.

Most federal courts of appeal in the United States have adopted a rule that, in the event of a conflict between panel decisions (most courts of appeal sit in panels of three), the earlier panel decision takes precedence. A panel decision can only be overruled by the court of appeals sitting en banc (i.e., all active judges of the court) or by a higher court. When an issue comes up for the third time in these courts, the earlier ruling still reigns supreme.

Other courts, such as the Court of Customs and Patent Appeals and the Supreme Court, always convene en banc, and the latter’s ruling decides the outcome. In each new case, these courts effectively overturn all prior cases, and older cases are only preserved to the degree that they do not contradict subsequent ones. These courts’ interpretations, for instance, the Supreme Court interpretations of the constitution or federal statutes, are only stable as long as the earlier interpretation has a majority of the court’s support. Older rulings are upheld for a variety of reasons, including a feeling that they are correct and that they are not erroneous enough to be overridden.

Common Law forms the bedrock for commercial economies

The dependence on judicial opinion is a strength of common law systems, and it contributes significantly to the US business systems’ robustness. Parties, especially business parties, can foresee whether a planned course of conduct is likely to be lawful or unlawful and have some certainty of consistency because there is pretty clear advice on practically every topic. Justice Louis Brandeis, an American lawyer and associate justice on the Supreme Court of the United States said that in most cases, it is more necessary that the relevant rule of law be settled than that it be resolved properly. This capacity to forecast offers you more leeway to get near the law’s edges. Many business contracts, for example, are more economically effective and generate more income because the parties know ahead of time that the proposed arrangement is nearly always lawful, even if it is close to the line. Newspapers, taxpayer-funded religious groups, and political parties can all get very explicit guidance on the scope of their freedom of expression rights.

Fine problems of law, on the other hand, are redetermined each time they arise in jurisdictions with low regard for precedent, making consistency and forecast more difficult and procedures considerably longer than required because parties cannot depend on written pronouncements of law as reliable guides. Parties have less a priori guidance, unless the written law is very clear and kept up to date, and must often leave a larger safety margin of unexploited opportunities in jurisdictions that do not have a strong allegiance to a large body of precedent, and final determinations are reached only after far greater expenditures on legal fees by the parties.

This is why, even when neither party has considerable relations with New York, the law of the State of New York is frequently used in commercial transactions. To eliminate confusion, commercial contracts almost always include a choice of law provision. Surprisingly, contracts all over the world, like those involving parties from Japan, France, and Germany, as well as most other states in the United States, frequently choose New York law, even when the links between parties and transactions to New York are tenuous. Because of its history as the commercial capital of the United States, New York common law has a depth and predictability not found in any other United States jurisdiction. American contracts relating to corporate law issues (mergers and acquisitions of companies, shareholder rights, etc.) include a Delaware choice of law clause, because of the deep body of law in Delaware concerning these issues and the easier legal process under common law. 

This isn’t to suggest that common law is always preferable. When the legislator has the foresight and attention to handle the specific set of facts pertinent to a given circumstance, for example, civil law might be clearer than case law. Hence, civil law legislation is more complex than that passed by common law legislatures, but it is also more difficult to read. The US Tax Code can be an apt example.

Legal system in the United States

The law of the United States is made up of numerous layers of codified and uncodified types of law, the most significant of which is the nation’s Constitution, which establishes the federal government’s basis as well as certain civil freedoms. The Constitution defines the scope of federal law, which includes Acts of Congress, treaties passed by the Senate, executive branch regulations, and case law coming from the federal judiciary. The United States Code is the official compilation and codification of all federal statutory laws, both temporary and permanent.

In the 50 United States and the territories, competing state and territory laws are preempted by federal law and treaties as long as they are consistent with the Constitution. However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual sovereign system of American federalism, states are the plenary sovereigns, each with their own constitution, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution. Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights. Thus, U.S. law (especially the actual “living law” of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.

The law of the United States is substantially drawn from the common law system of English law, which was in existence at the time of the American Revolutionary War at both the federal and state levels, with the exception of Louisiana. However, American law has departed significantly from its English forefathers in terms of substance and practice, as well as incorporating a number of civil law innovations.

Common Law in the United States

Common Law in various states of the USA from 17th century onwards

The centuries-old authority of English common law courts to develop law case by case and apply statute law (“legislating from the bench”) is a traditional function of courts that has been carried over into the United States system as an essential component of the “judicial power” specified by Article III of the United States Constitution. “Judges do and must legislate” (in the federal courts, only interstitially, and in state courts, to the full limits of common law adjudicatory authority), wrote Justice Oliver Wendell Holmes Jr. in 1917, summarising decades of history. 

Common Law in New York in the 17th century

The Dutch established the colony of New Netherland, and the legislation was likewise Dutch. When the English conquered pre-existing colonies, they kept the civil law in place for the locals. The colony was regained by the Dutch after the Dutch settlers revolted against the English. The colony of New York had two unique legal systems in 1664: on Manhattan Island and along the Hudson River, sophisticated courts fashioned after those in the Netherlands were settling disputes in a scholarly manner, in line with Dutch common law. On the other hand, English courts on Long Island, Staten Island, and Westchester were administering a primitive, non-technical variation of the common law brought from Puritan New England and administered without the assistance of attorneys. 

Common Law in Louisiana in the 18th century

Private law, that is, substantive law between private sector parties, is founded on principles of law from continental Europe, with certain common law influences, under Louisiana’s codified system, the Louisiana Civil Code. Because the state’s present territory connects the region of North America occupied by Spain and France, these concepts are ultimately derived from Roman law and conveyed through French and Spanish law. The Louisiana Code does not directly come from the Napoleonic Code, which was enacted in 1804, one year after the Louisiana Purchase, contrary to common perception. However, due to their roots, the two codes are comparable in many ways.

The criminal law of Louisiana is substantially based on English common law. Louisiana’s administrative law is mostly identical to that of the federal government and other states in the United States. Louisiana’s procedural law is essentially consistent with that of other states in the United States, which is based on the Federal Rules of Civil Procedure of the United States.

The importance of property rights among women, notably in inheritance earned by widows, is historically significant among the Louisiana code’s departures from common law.

Common Law in California in the mid-19th century

California’s legal system is founded on common law, although it has been codified in the manner of civil law states. The California Codes were enacted in the 19th century to replace a pre-existing system based on Spanish civil law with a common law system similar to that found in most other states. California and a handful of other Western states, on the other hand, have kept the civil law idea of communal property. Parts of the codes have been viewed by California courts as a continuation of the common-law heritage, subject to judicial growth in the same way that judge-made common law is. In Li v. Yellow Cab Co. (1975), the California Supreme Court, notwithstanding a California Civil Code provision codifying the conventional common-law notion of contributory negligence, established the principle of comparative negligence.

United States federal courts from 1789 to 1938

The federal government of the United States operates on a common law system. Federal courts in the United States only interpret statutes and the constitution by expanding and accurately defining broad legislative language, but they do not typically operate as an independent source of common law, unlike state courts.

Prior to 1938, federal courts, like almost all other common law courts, concluded the law on any issue where the applicable legislature (either the United States Congress or the state legislature, depending on the issue) had not intervened, by looking to courts within the same framework, that is, other federal courts, even on issues of state law and even where Congress or the Constitution had not expressly granted authority.

In Erie Railroad Co. v. Tompkins (1938), the United States Supreme Court rejected the previous precedent and found that there is no federal general common law, limiting federal courts to acting merely as interstitial interpreters of law originating elsewhere. For example, in Texas Industries v. Radcliff (1981), the court concluded that federal courts cannot construct norms of intuitive justice, such as a right to contribution from co-conspirators, without an express grant of congressional power. After 1938, federal courts addressing questions arising under state law must either defer to state court interpretations of state legislation, reason what a state’s highest court would rule if faced with the matter, or certify the issue to the state’s highest court for settlement. Later courts have narrowed the scope of Erie to allow federal courts to create federal common law rules without express statutory authority in a few limited circumstances, such as when a federal rule of decision is required to protect uniquely federal interests, such as foreign affairs or financial instruments issued by the federal government. For example, in Clearfield Trust Co. v. United States (1943), the court found that providing federal courts with the ability to construct common law standards with respect to matters of federal power, i.e., backed by federally backed negotiable instruments in this case, was a mistake. The Court also concluded in International News Service v. Associated Press (1918) that creating a cause of action for theft of hot news lacks any legislative backing. However, in National Basketball Association v. Motorola, Inc. (1997), the Court acknowledged that the INS hot news tort is still alive and well under New York state law, but left the question of whether it is still alive and well under federal law unresolved. Except on constitutional matters, Congress has the authority to overturn the common law of the federal courts by legislation.

Executive branch agencies in the United States in 1946

Most executive branch agencies in the federal government of the United States have adjudicatory jurisdiction. To a greater or lesser extent, agencies follow their own precedent in order to achieve consistency. The Administrative Procedure Act of 1946 governs agency decision-making. The National Labor Relations Board, for example, produces a few regulations but instead relies on common law to enact the majority of its substantive rules.

Common Law in the contemporary USA

The United States of America is a common law country. Except in Louisiana (which is based on the French civil code), the common law of England has been accepted as the state’s general law, unless the legislature specifies otherwise. Judges develop common law by written judgments that are binding on future decisions of subordinate courts in the same jurisdiction. There is no legislative foundation for common law. The common law has traditionally covered a wide range of topics, including property, contracts, and torts. Because these areas of the law are mainly under state authority, state courts are the principal source of common law. Hence, ‘common law’ is employed to fill in the blanks. The common law has evolved through time, and each state now has its own common law on a variety of themes. Federal common law is largely concerned with federal concerns that have not been addressed by legislation.

Common Law Marriage

In the United States, common law marriage has been legal since 1877. A common law marriage, often known as a non-ceremonious marriage, is a legal framework that allows spouses to be legally married without registering their relationship as a civil or religious marriage. Common law marriage is founded on public policy and case law rather than formal regulations. There is no requirement for couples to get a marriage licence or have a ceremony.

While common law marriage is not prevalent in the United States and is an old idea, a handful of states have legislation that allows common law marriage provided specific conditions are met:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas

A number of states, including Alabama, have recently repealed common law marriage legislation.

A couple can be considered married under common law if they live together for a certain period of time, which varies by state, and present themselves to their community as such. A marriage licence or an official ceremony does not require the couple to go through legal processes. For a common law marriage to be recognised in most states, there are a few basic requirements:

  • A couple is required to live together for a period of time set by the state.
  • Both must be over the age of eighteen (in most states).
  • Both parties must be in good mental health.
  • Neither of them could already be married.
  • Both parties must want to get married.
  • Both must present themselves as married, including assuming the same last name, holding joint bank accounts, and addressing each other as “husband,” “wife,” and so on.

Disempowerment and marginalisation

When a common law judge presents a matter to a jury, they assess which precedents apply and make a judgement based on those precedents. It’s not shocking to discover how the common law system has historically excluded and impoverished some groups: Future judgements are shaped by biased and outdated decisions until major social changes force the judicial body to alter the precedent. Until civil legislation or popular opinion alters the way common law and rights are read, the system makes it more difficult for oppressed populations to get just or favourable court verdicts.

Special considerations by judges

Judges can considerably affect the criteria that a jury employs to understand a case by presenting the precedents that pertain to it. Historically, common law traditions have resulted in the marginalisation or disempowerment of particular populations. Past judgements continue to impact future rulings, whether they are obsolete or prejudiced, until social changes lead a judicial body to reject the precedent.

This structure makes it difficult for marginalised parties to get favourable verdicts unless the understanding of common law is changed by popular opinion or civil legislation. Feminists fighting for women’s rights throughout the 19th and early 20th centuries confronted similar challenges.

Principle of Stare Decisis in the US

The doctrine of stare decisis is essential for the US legal system. 

  1. Case laws, sometimes known as “judge-made” laws or common law, are the cornerstones of this doctrine. Cases are decisions made by the law based on a specific collection of circumstances involving parties who genuinely care about the issue. Case law may be of the following types in the United States of America:
    1. Pure decisional case law

The court is asked to determine cases based on previous court rulings, i.e., precedent, policies, and an intrinsic sense of fairness and justice. The term “judicially-created doctrine” refers to a particular branch of decisional law where there is no appropriate statute or constitutional provision that applies in a legal matter. In the past, the phrase “case law” was used to describe specific legal disciplines (such as torts and property) that originated as judge-made or purely decisional law.

  1. Case law based on constitutional provisions

The court is asked to determine whether certain legislation or government actions are in accordance with the US Constitution or a specific state constitution. The Court’s interpretation may be based on earlier case law interpreting the same section or another constitutional provision.

  1. Case law based on statutory provisions

When a legal matter requires the court to interpret a statute, prior decisional law interpreting the same or a related statute may be used by the court in its interpretation.

  1. Another concept is that of ‘Subsequent Case History’. A higher level court’s actions in response to an appealed ruling from a lower level court are described in the subsequent case history. Subsequent case history is significant since if a higher level court has ruled on a lower level case, the ruling and opinion of the higher level court will serve as the case’s precedent. The lower level court’s decision in the same matter will effectively be overruled by the higher level court’s decision.
  2. The treatment of a subsequent case is done in the following manner:
  1. An analysis of what observations have been made regarding the concerned case from other cases. 
  2. Analysis of whether the case has been upheld or reversed or distinguished or used in a certain manner.
  3. Subsequent case treatment is important since it explains how the first case is interpreted by the same court and other courts.


In a nutshell, a corpus of unwritten laws based on legal precedents established by the courts is known as common law. Common law is based on judicial authorities’ and public juries’ established opinions and interpretations. Common laws can occasionally serve as a source of inspiration for new legislation. Although common law has its origins in mediaeval England, it is still very much in use in the United States and internationally today. The common-law system in the United States emerged from a British tradition that expanded to North America throughout the colonial period in the 17th and 18th centuries. Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom all follow common law. The flexibility of common law to leave the legal code open to interpretation will become increasingly crucial as technology evolves and its role in our lives grows.

Frequently Asked Questions (FAQs)

  1. What is meant by Common Law?

A corpus of unwritten laws based on legal precedents established by the courts is known as common law.

  1. What is a Common Law example?

One example of common law in operation today is the notion of common-law marriage, which grants couples who are not legally married rights identical to those who have a marriage licence if certain circumstances are satisfied.

  1. What is the significance of Common Law?

The emphasis in common law is on precedent, with considerable room for interpretation. The benefit of a common-law system is that the law may be tailored to situations that the legislature did not anticipate at the time.

  1. How did Common Law emerge in the United States?

Common law in the US has English colonial roots. Although US common law has its origins in mediaeval England, both the US and the UK now have a dual legal system that includes both common and civil law.

  1. Is there still a place for Common Law in contemporary US society?

Yes, common law is operating in the United States of America in present times. The United States now has a dual legal system of common and civil law. The common law, for example, governs the courts.


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here