Talk:Law of the United States/Archive 1

Archive 1

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"Because of the American Revolution, the United States is not a member of the Commonwealth of Nations." - not really an explanation....either this statement should be deleted, or substantiated —Preceding unsigned comment added by Jrleighton (talk • contribs) 04:30, February 13, 2005

It's not that hard, duh

The whole point of the Revolution was to get the U.S. out of the British Empire (which became the Commonwealth after the Empire fell apart). No more king, no more obeying of Parliament or the king's courts.

But rather than write entirely new systems of law from scratch, the colonists wrote only a new federal constitution (actually two, if one includes the Articles of Confederation). At the state level, they kept the common law rules that they had inherited from the British Empire, but grounded them in the legal fiction of the people as sovereign rather than the king as sovereign. Same rules (with minor modifications to fit the federal constitution), new sovereign. Then the American and British legal rules drifted in different directions over time. In contrast, the Commonwealth nations split from the U.K. much later; New Zealand finally got its own Supreme Court just last year, and before then all final appeals still went to the Queen's Privy Council in London. Even now, although they are supposed to be independent countries, the courts of the Commonwealth nations tend to look to each other for guidance in the same way that American state courts look at the trends in the courts of their sister states. American courts still look at other countries' decisions sometimes, but not often.

Congress, lawyers, and judges often discuss the issue of whether American judges should be completely prevented from looking at judicial opinions outside of the U.S., now that we have our own mature legal system. In January 2005, Justice Scalia publicly argued with Justice Breyer about several issues at American University School of Law, including this one.

There is a strong conservative movement to prevent "judicial activism" from importing "uncivilized" foreign notions of justice into the U.S., such as abolition of the death penalty or legalization of gay marriage.

It's really not that hard to understand (for lawyers, that is).

--Coolcaesar 06:46, 13 Feb 2005 (UTC)

Not True

Not totally. Yes the US did sever from the Brits in 1776, BUT the US did inherit a common law system. The courts are still common law courts (the procedures they use, adversarial system, adherence to precedent, interpretion of statutes) etc etc etc. Even with codification for example, the courts are STILL applying common law doctrines. Murder for example was defined WELL before 1776, as were many or most principles of criminal law, tort law, contract and trusts. The US Courts have also absorbed many ideas from foreign sources. While they are less willing to look to other countries than say the Aussies, they still do. A decision of the United Kingdom House of Lords is going to be treated with the greatest respect by the US Courts if applicable and Supreme Court decisions will be accorded the smame respect. —Preceding unsigned comment added by 203.82.48.54 (talk • contribs) (on 25 October 2005).

The first part of your assertion is true, up to the phrase "while they are still less willing..." The second part is ridiculous. Very few American lawyers or judges will cite a House of Lords decision, unless there are zero American cases with exactly the same facts, the UK case matches the facts of the domestic case exactly, and there is no domestic statute on point. It sounds like you have never studied or practiced law in the United States. --Coolcaesar 03:31, 28 October 2005 (UTC)

Also, there is a major difference, in that all American jurisdictions use codes (a concept borrowed from the civil law system) to some extent, while most other common law jurisdictions do not. --Coolcaesar 03:34, 28 October 2005 (UTC)

The US follows, Donahuge v Stevenson as well as many other cases (the High Trees case comes to mind) which are British cases. Landmark cases are followed often enough. They WILL cite a recent case, especially if that area of law is under some confusion. Whether the court accepts it or not is of course different.

As for codes, well almost all common law judistrictions have accepted codification. However, codification still goes hand in hand with case law, unlike civil law systems. —Preceding unsigned comment added by 203.82.48.54 (talk • contribs) 17:52, December 9, 2005

Actually, the U.S. follows the rule of MacDonald v. Buick Motor Co., an earlier 1916 opinion by Benjamin Cardozo. Yes, one of the Law Lords who wrote an opinion for Donoghue did try to distinguish MacDonald on the ground that it involved an inherently dangerous product, but all American courts have read MacDonald broadly as creating a general cause of action for negligence between the manufacturer and the consumer. American lawyers traditionally speak of the MacDonald rule, not the Donoghue rule. Again, it is clear that you have not read many American cases.

In the most important American tort case of the 20th century, Greenman v. Yuba Power Products, Inc. [1], you will notice that Roger J. Traynor did not cite a single foreign case.

As for your other point, Australia, New Zealand, Canada and the U.K. all have not yet codified their statutory law, as far as I can tell with a brief Google search. Yes, there are regulatory codes in some of those countries, but regulatory codes are not the same thing as statutory codes. After all, regulations can be revised at the pleasure of the executive branch, while statutes can only be revised by a vote of the legislature. --Coolcaesar 01:13, 10 December 2005 (UTC)

I have read quite a few American cases. What you seem to have done is forget the difference between persuasive precedent and binding precedent. Obviously the cases of other countries are not binding on US Courts, they may well be persuasive. My old Common Law Tutor was an American Lawyer who had appeared in over 50 cases between the US Supreme court and he told me that he and everyone in his firm would read the latest cases from the superior courts of Canada, UK, Australia, India, Pakistan and all the other common law counries with interest, and the judges would often discuss them if they had anything whih the US might follow. MacDonlad is cited in US courts because it is a US case as opposed to Donahuge (which is actually Scottish)and that is the binding precedent. Actually the attempt to distinguish the two was done by the defendent not a law lord (Lord Atkin discusses MacDonald IIRC), but I have never met a US lawyer who has told me thet Donahuge does not represent US Law.

What I ment was that US Courts would be willing to see Common Law cases (opposed to cases from Civil Law countries) mainly because method of reasoning and the legal tradition is similar. Maybe I did not pay enough attention in class, maybe I misundertood my tutor, maybe appllate lawyers read from a larger variety of sources, well sir, you enlighten me. After all thats what wikipedia is for.

BTW, both India and Pakistan codified their law, and that dates back to the time they were British Colonies. —Preceding unsigned comment added by 203.82.48.54 (talk • contribs) 05:25, December 21, 2005

I think you are right that the issue here is the difference between appellate litigators and trial litigators. Yes, the U.S. Supreme Court does sometimes look at foreign csaes, and appellate litigators at the U.S. Supreme Court level are expected to be familiar with relevant trends in other important common law jurisdictions, especially in areas like constitutional law where much of the law develops through broad judicial glosses. However, this is less true of American litigators in all lower courts, federal and state. One reason is that the vast majority of cases are settled long before trial. No one is going to go to the trouble of researching the global trends relevant to every single little issue in the case, when 95% of the time, all they need to know is binding precedent in that jurisdiction.

In turn, their knowledge of such precedent plus the facts of the case will determine what stance and tactics they use during settlement talks. And even if they need to do a broad search for persuasive precedent because the issue is novel, it is usually sufficient to know how many U.S. states are for or against their position. A lawyer who brings up India or the U.K.'s position on a minor issue in a routine contract or tort case during settlement talks is going to be laughed out of the conference room.

Another reason is that state supreme court judges in the United States are often elected or are subject to recall by the electorate (see, for example, Rose Bird). Many American citizens do not understand the long tradition behind the limited lawmaking power of common law judges, and even if they do understand that such power exists, many believe that it should be sparingly used. Many Americans are also hostile to the notion of "world government" which they see embodied in various bodies like the United Nations. Thus, a judge who relies too often on foreign precedents (rather than the plain text of the federal or state constitutions or statutes) may be accused at the next election of judicial activism and of ignoring the will of the American people. So a state supreme court judge will look at cases from foreign jurisdictions for guidance only after they have assured themselves that there is absolutely no binding precedent on point and that domestic persuasive precedent does not exist or is unpersuasive or is in conflict. Similarly, judges in local state courts and intermediate courts are also often elected or subject to recall. They are not going to rock the boat, especially if they know that the state supreme court would reverse anyway for exceeding one's authority.

Yes, sometimes cases do get litigated for the specific purpose of going up on appeal and forcing the development of new law, as in Brown v. Board of Education, but those are relatively rare. Most litigants and litigators do not have the time, money, or patience for such heroic actions. Also, appellate litigation is very expensive, especially if it does become necessary to research the law in other common law countries. In an ordinary contract case where say, only $100,000 is at stake, it makes zero sense for a client to spend that much on a full trial and an appeal just to come out even. Clients usually want damages, not just a mere declaration that they fulfilled their obligations and the other party breached. So in most cases, there is simply no need for anyone to become familiar with precedents outside of the U.S. because it would take time and money that neither side has. They just want to settle NOW. --Coolcaesar 06:30, 21 December 2005 (UTC)

So at the Federal Level ( Federal Courts of Appeal and Supreme Court), they will be knowledgable about House of Lords or High Court of Australia decisions?

When the Spanner (Operation Spanner) case came out, it was said that many common law judistrictions were going to follow them in all likihood. —Preceding unsigned comment added by 203.82.48.54 (talk • contribs) 14:42, December 21, 2005

It depends upon the particular judge. Some conservative judges, like Antonin Scalia, believe that American judges should never look to foreign precedents with the sole exception of cases interpreting treaties to which the U.S. is a signatory. Thus, although they may be familiar with a few foreign decisions, they will never cite them as persuasive authority (except perhaps as part of an argument in a dissent against citing foreign authority). Their position is that it is the prerogative of the American people, through their duly elected representatives, to adopt foreign laws if they wish to do so, and it would be a violation of separation of powers for a judge to unilaterally seize that prerogative. For example, the American LLC was borrowed by state legislators from foreign concepts like the German GmBH.

In contrast, most liberal and moderate federal appellate judges are at least vaguely familiar with current trends in other common law jurisdictions, if not the details. This is especially true with regard to areas where the U.S. differs sharply from the rest of the world, like freedom of speech, death penalty, and establishment of patent priority. If a case is going up on appeal through the federal system, then the parties involved are already past the point of no return (that is, the point of pretrial settlement) for some unusual reason and have committed themselves to a long fight. Then they're going to throw in everything they can find, and everything may include relevant foreign precedent. --Coolcaesar 07:02, 22 December 2005 (UTC)

Ain't no British common law

The British legal systems remain separate as you will see from the common law article, and the U.S. system is based on English law. It's interesting that you appear to follow Donoghue v. Stevenson which was brought under the Scots law of Delict, but when settled in the Lords was applied to English law. Trust you're content with the changes I've made to correct the point, ,,dave souza, talk 18:53, 14 April 2006 (UTC)

You're right about English law, I guess, but I don't think you're right about Donoghue. I am raising my concerns on that article's talk page. --Coolcaesar 20:04, 14 April 2006 (UTC)

It would have been better to say "refer to Donoghue", and my impression was based on a superficial reading of this talk page: that case is of interest in the way it developed from a Scots case to one affecting English common law, but I can claim no knowledge of its relevance in the U.S.. dave souza, talk 23:11, 14 April 2006 (UTC)

Is there a US Law project?

Is there a US law project some place? If not, does anyone have an interest in starting one?TheronJ 15:17, 30 May 2006 (UTC)

American Courts Cite British Cases after the 19th Century

This article's claim that American courts look only to British cases up to the 19th century is blatently wrong. I am changing it to "American court often only to cases up to the 19th century", which I think is more or less correct (although I don't have a scientic study to back that up).

As way of example, here are two example American cases (which I found totally randomly on Westlaw) that cite British cases decided after the 19th century.

• State v. Atwood, 290 N.C. 266, (N.C. 1976), citing Sweet v. Parsley, 1 All E.R. 347 (House of Lords, 1969).

• People v. Brown, 99 Ill.App.2d 281, 299 n. 6 (Ill.App. 1968), citing Connelly v. Director of Public Prosecutions, 2 All E.R. 401 (House of Lords, 1964).

Note: I am not a lawyer but am a law student and we regularly read British cases in class. Michael.passman 20:41, 30 November 2006 (UTC)

So what? I had to read Hadley v. Baxendale, and Pierson v. Post, and dozens of other British cases. But once you start working for a law firm in the real world, you'll soon discover that judges and lawyers will laugh at you when you start citing English cases to them (it happened to me several times before I learned my lesson). Most practicing lawyers care only about statutes and cases that are relatively recent, from their own jurisdiction, and therefore are more likely to be valid in the context of a current case. The problem with older cases is that unless the facts are precisely on point, an experienced attorney can always distinguish or weaken them in dozens of different ways. For example, I can attack the validity of the Miranda v. Arizona (1966) prophylactic rule against coercive interrogation by pointing out that it was badly weakened by Oregon v. Elstad (1985) and Missouri v. Seibert (2005). And current cases from the UK are often partially based on interpretation of statutes which have evolved in fundamentally different directions from their American counterparts (and thus can be easily distinguished). So yes, there are a few cases which do cite contemporary British cases, but they are often focused only on areas covered under the common law like criminal procedure. It would be highly unusual for an American case to cite a British case to resolve a purely statutory issue (like under the UCC) unless the issue is truly new.

Also, unless you're planning to take the bar in a really easy state like North Dakota where anyone with a pulse can pass, you need to work on improving your writing if you seriously plan to practice law. California, New York, Illinois, etc. all require the ability to generate proper formal written English. For example, this sentence of yours should be written as follows: "By way of example, here are two American cases (which I found at random on Westlaw) that cite British cases decided after the 19th century."--Coolcaesar 08:17, 4 December 2006 (UTC)

Um... I don't really know how to respond to that. I guess that I agree that MOST of the time its rediculous to cite British cases unless its an issue the court is hearing for the first time. But the article said that British cases from after the 19th century are not cited in American courts, which is not true. They are cited, just not very often. Therefore I gave two random examples and changed the article to say that British cases after the 19th century are not cited "often". I think we both agree that this is true. Also I don't think the wikipedia talk page is really the place to be showing off your ability to edit other people's admittedly bad grammar (again, its a wikipedia talk page). Michael.passman 22:57, 4 December 2006 (UTC)

British Statutes in the American Common Law

I am also going to add that some British statutes have crept into the American Common law. Two examples that many lawyers will easily recognize are the Statute of Frauds (Signed Writings) and the Staute of 13 Elizabeth (Fraudulent Conveyance).

Although both these originally British Statutes have modern American common law and statutory equivilents, they are regularly cited in their original form. Michael.passman

But the original statutes are always cited only in passing as part of a historical analysis of their evolution. Cases analyzing them always turn in the end on the relevant state statutes that codify the older British statutes. Take a look at Mejia v. Reed (2003) 31 Cal.4th 657. You'll notice how the Statute of 13 Elizabeth is cited only in passing as part of a discussion of the modern UFTA. While trial judges can sometimes make mistakes in the midst of a complex trial, I have never seen an American appellate judge (especially those at the state supreme court level) publish an opinion that cites an original English statute without any further elaboration upon how that statute has since been adopted as the law of his or her jurisdiction. --Coolcaesar 08:17, 4 December 2006 (UTC)

I think we basically agree so I'm not going to argue with you. Michael.passman 22:57, 4 December 2006 (UTC)

Actually we still disagree. As a practicing attorney, I see British statutes cited extremely rarely. You clearly have not yet worked as a law clerk for a law firm. I am going to modify the article right now to better reflect the actual situation. --Coolcaesar 07:12, 28 January 2007 (UTC)

Proposal that maybe everyone can live with

I am still a little unclear on how Coolcaesar actually disagrees with me or other people on this talk page. I think that we are saying that British cases and statutes are cited, though admittedly extremely rarely. Coolcaesar is saying that it happens some time, but extremly rarely and always with explanation. So instead of arguing whatever point of disagreement that may still exist (such as whether or not I have worked in a law firm or if I write poorly on wikipedia talk pages), I propose the following edit that maybe everyone will like:

"American courts generally only cite British cases or statutes from before the 19th century, if at all. However, American courts will very rarely cite a more recent British case or statute if there is a clear American equivilent, and in such a instance the court will almost always also cite the American equivilent and use it as the main authority for their decision."

Can we all live with that? Coolcaesar? —Preceding unsigned comment added by 67.110.131.10 (talk • contribs) 14:00, June 12, 2007