Talk:Case law

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[edit] can anyone tell me the three difference between civil law an common law?

can anyone tell me the three difference between civil law an common law?

I doubt it, since neither "civil law" nor "common law" are very precise (or monosemic) terms. Francis Davey 20:50, 26 August 2005 (UTC)


based on the doctrine of precedent in australia, whether the common law is static or instable?

[edit] judge-made law

"Case law (precedential law or black-letter law or decisional law or non-statutory law) is the body of judge-made law"

Isn't this a VERY BAD statement? Judges are not permitted to legislate from the bench and that is exactly what this is indicating.

The constitution deliberately separates the powers and only congress has the power to legislate (make law). Any judge "making law" is violating the separation of powers.

Judges certainly make law in other jurisdictions -- they do in mine. Since this is not a US only page, the separation of powers isn't relevant. Judges here are quite clear about both their power and their desire to make new law. Francis Davey 21:48, 5 May 2006 (UTC)
This is a fallacy. The United States has a common law system, so, by definition there is judge-made law, out of necessity. The formula that judges in the American system "do not make law but only interpret law" is a simplification that should not be taken too literally. American judges do make law, every day, because they have to. Otherwise the legal system would not function. Acsenray 19:24, 31 May 2006 (UTC)
It's bad though. The common people have nothing to do with the judicial system, so the supreme court can make any kind of crazy decisions it wants, no matter what we say. Then again, maybe that's the only way to make progress.. but it's definitely gotten out of hand.
Not at all has it "gotten out of hand." Brown v. Board of Education was a radical overturning, a rewriting of segregational law established by various state and federal governments over a period of half a century or more. I challenge anyone to say Brown v. Board wasn't necessary. Sometimes, we NEED a body of government unbeholden to public opinion. Once upon a time, this was, on the federal level in the United States, the Senate as well as the judiciary. Now, because the Senate has been opened to popular election, Americans have an immediate suspicion of any government by people without a selfish motive to follow public opinion. The fact of the matter is, though, that for government to truly work, it needs to operate under a certain sense of security; that it can make the difficult, unpopular decisions without fear of reprisals.Benn M. 10:01, 17 June 2007 (UTC)

Regarding this statement:

Isn't this a VERY BAD statement? Judges are not permitted to legislate from the bench and that is exactly what this is indicating.

As editor Acsenray has noted, case law is indeed judge-made law. Contrary to some popular misconceptions, the law of the United States actually comes down to us from English common law, which is judge-made law. Judges in the United States make law every day. It's called "case law" or "precedent".

The popular and oft-repeated statement that "judges should not legislate from the bench" is typically intended to mean that judges should not substitute their own views about what social policy should be for the judgment of the legislature, etc. There is of course an ongoing and valid debate over how "activist" a judge should be, and about how far a judge should go before judicial "interpretion" becomes judicial "legislating." These concerns have been debated by legal scholars and politicians since the founding of the United States of America, and they probably always will be.

But that does not change the fact that, as a formal legal matter in the United States, judges make law, and that law is known as "case law." Famspear (talk) 19:15, 16 April 2008 (UTC)

[edit] Example Citation

For the paragraph:

Some judges are also known to rule against precedent on principle. A judge (or even an interim appeal court) may rule against a precedent that is outdated. The judge may feel the decision needs to be overturned due to more sophisticated legal reasoning. Such a judge may wish to help the law evolve by ruling against precedent and thereby indirectly inducing a losing party to appeal. The appeal court will then have an opportunity to review the lower court's decision and may adopt the lower court's reasoning, thereby overturning previous case law. This may also happen several times as the case works its way through intermediate appellate jurisdictions.

Would it be an idea to provide an example? A world-famous example is the Warren court's overturning of Plessy v. Ferguson in Brown v. Board of Education. Benn M. 10:30, 17 June 2007 (UTC)

[edit] Cleanup tags

I don't have time this second to find all the particular tags to cover all the help this article needs (THIS is the version I encountered) but this is what I see as needing work:

  • No references
  • The intro is too technical to enable laypeople to understand the gist of the topic (MoS states that the lede should summarise the topic in simple terms, even if the topic itself is arcane)
  • Inappropriate formatting (notably the random bolding)
  • Perhaps inappropriate wikilinking (see some examples where individual words of a technical term are individually wikilinked, rather than the term itself)
  • Poor writing, particularly in the lede
  • Too much unsupported, random detail in the lede
  • Needs appropriate expansion (references, see also, external links, categories)

Please don't remove the cleanup tag (unless some kind person finds more appropriate tags for the article's problems) without discussing it here. Anchoress · Weigh Anchor · Catacomb 18:44, 16 April 2008 (UTC)

No doubt about, the article needs work. I made a start on the lead section. I haven't even read the article in full yet, and maybe someone else can get to it sooner than I can. Famspear (talk) 19:08, 16 April 2008 (UTC)
Thanks for getting the ball rolling! Anchoress · Weigh Anchor · Catacomb 19:29, 16 April 2008 (UTC)

I'll start working on this. I'm busy, so several days may go by without me touching it. The statement near the beginning on black letter law was slightly inaccurate. Case law and black letter law are not synonymous. Cases may contain black letter law, but they are not, in themselves, black letter law. Judicata (talk) 15:48, 19 April 2008 (UTC)

I made edits throughout. The article is in desperate need of sources. Judicata (talk) 16:34, 19 April 2008 (UTC)