Common Law is created by judicial action, through the decisions of courts or other tribunals. Statutory Law is created by legislative action, through the passing of Statutes. Regulatory Law is created by executive action, such as rules issued by agencies of the executive branch.
A legal system based on Common Law relies on precedential case. In this system, cetain prior decisions of courts in a jurisdiction are binding on future decisions of courts in this same jurisdiction. However, prior court decisions may not necessarily be binding on a court even within a particular jurisdiction.For example, decisions issued by appellate courts in a given jurisdiction are usually binding on all lower courts in that same jurisdiction, but are not binding on lower courts in different jurisdictions. Further, decisions of a lower court in a given jurisdiction are generally not binding on other lower courts in the same jurisdiction.
Common Law legal systems, therefore, rely on the principle of stare decisis. This principle states judges are obligated to obey precedents established by prior decisions. In recent years, during hearings by the Justice Committee of the United States Senate, Supreme Court justice nominees are frequently asked their position with respect to the principle of stare decisis.
For example, Roe v. Wade was decided on January 22, 1973 after oral arguments on December 13, 1971 followed by a second oral argument on October 11, 1972. This case is generally considered to be a landmark case and one of the most socially and politically controversial cases in the history of the U.S. Supreme Court. In a 7-2 ruling the Court held that a woman had the right to an abortion for any reason up until the point where the fetus becomes viable. The Court based its ruling on a constitutional right to privacy based on the Due Process clause of the Fourteenth amendment.
It is not my intention to argue the merits for and against of Roe v. Wade. Rather I want to use this case, and the political debate that surrounds it, to explain why stare decisis is important to members of the Senate Judiciary Committee. Most nominees, when questioned about whether they agree or disagree with the Court’s ruling in Roe v. Wade, will refuse to take a position. Senators who publicly support a woman’s right to privacy and the right to an abortion will press a nominee to take a strong public position on stare decisis. It is hoped, I believe, that when a nominee to take a strong stance in favor of stare decisis, they will be forced to uphold Roe v Wade should a similar case come before the court.
The English Common Law system originated in the middle ages shortly after the Norman Conquest in 1066. The United States has a legal history that is strongly based on English Common Law.
The Federal Judiciary of the United States is not today a pure common law legal system. Prior to 1938, the U.S. Supreme Court acted like a common law court. The Supreme Court looked to prior decisions of other courts in the Federal jurisdiction for precedent. Such precedent would be binding on decisions issued by the Supreme Court.
In another landmark ruling in 1938, Erie Railroad v. Tompkins, the Supreme Court ruled that federal courts did not have the power to create new federal law when hearing civil claims of state law involving citizens of different states or non-U.S. citizens (diversity jurisdiction). Based on this ruling, the law of the State where the case was originally filed would be applied in a diversity case. This ruling was significant because it held that there was no federal general common law. Federal courts after 1938 are limited to interpreting laws that originate elsewhere.
For the reasons above, I believe it is important to understand the role of Judicial Philosophy and Statutory Interpretation in the decision making process of the United States Supreme Court. That will be the thrust of this blog and future postings. Stay tuned….
