The concept of “common law” dates back to the English legal system. The common law system was adopted by the United States after it gained its independence from England. However, that does not mean that the legal systems of the United States and England are the same. The United States has created its own common law system, adopting some principles from the English system and discarding others. In fact, the U.S. Constitution specifically made certain English principles such as general search warrants and bills of attainder illegal in the United States.
After the American Revolution, the then colonies passed “reception statutes” which essentially adopted much of England’s common law. North Carolina’s 1778 reception statute states: “All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.” However, when the state’s passed their constitutions they granted their legislatures the power to establish, or make state laws. This power given to the states, combined with the Constitution’s setting forth federal statutes and rights afforded under the Constitution, began the divergence of the English and American common law systems and led to the creation of what we in the United States call our “body of law.”
Interestingly every state, except for Louisiana, has a reception statute and follows a common law system. Louisiana on the other hand has adopted the Napoleonic code, which is a civil law system mixing French and Spanish civil law; civil law is prevalent in much of the world including both France and Germany. Civil law systems rely on the interpretation of specific laws or legislation while common law systems rely on the principle of stare decisis (discussed below).
Common law is law made by judges. It is also referred to as case law. Judges hear the facts of a case, apply existing case law or statutes to the facts, and then make a decision. In most cases, that law becomes binding case law. This is in contrast to statutory law which is law derived from statutes.
While there is both federal common law and state common law, common law is more prevalent at the state level. Since common law is established by state judges, it can, and does, vary depending on what state an issue arises in. One example of common law in North Carolina that varies drastically from most other states common laws is the contributory negligence doctrine which applies in personal injury cases. In North Carolina, the law is that if a plaintiff in a personal injury matter contributed at all to their injuries, that plaintiff will be precluded from recovering any damages. Therefore, a plaintiff injured in a Charlotte, North Carolina car accident who is found to be 1% at fault for the car accident could be precluded from recovering any damages. In the majority of US states, the common law differs and they follow a comparative negligence standard which allows recovery if the plaintiff is at fault; though the damage award may be reduced by the percentage of fault. Personal injury cases are only one example of how common law differs among the states.
Stare decisis is an integral principle of the United States common law system. In Latin, stare decisis translates to “let the decision stand.” Stare decisis requires that courts abide by the decisions made, or precedent set, by courts at their same level or higher. This is meant to ensure that the law is applied consistently to each and every party, thereby ensuring fairness to all litigants. It is also meant to prevent the same principles from being litigated over and over. These are two of the positive aspects of stare decisis. Of course there are some negatives. Sometimes judges make bad law. That bad law is then repeated over and over and it can take years for bad law to be overruled.
In the federal court system where there hierarchy of courts goes from District Courts to Courts of Appeal and finally up to the Supreme Court, stare decisis dictates that each court be governed by certain decisions. As the lowest level court, district courts can look to other district court decisions, court of appeals or supreme court decisions to find the precedent necessary to make a decision. The Supreme Court, as the highest court in the land, is bound only by the precedent set in their prior opinions; they will not be guided by precedent set at lower level courts.
Stare decisis applies similarly to state courts. In North Carolina for example, where the courts range from District Court to Superior Court to Appellate Court (which includes the Court of Appeals and North Carolina Supreme Court), the Supreme Court cannot make decisions by relying on case law established at either the District Court or Superior Court levels. Instead, they can only rely on case law established by the Supreme Court. District Courts on the other hand can rely on case law established by any of the courts.
In recent years, some of the Supreme Court justices have chosen to address stare decisis, and in particular, the binding nature of their decisions in recent cases when dealing with constitutional issues. It remains to be seen how this will play out in future cases.
Let Our Charlotte, North Carolina Personal Injury Attorneys Review Your Case
If you have a personal injury case in Charlotte, NC, common law will apply. The lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who can help you understand your rights and determine if you should proceed with a claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.