In a stunning display of I’m not sure what, an Iowa state legislator has introduced a bill that would essentially eliminate the common law.
It would forbid a judge from using case law or judicial precedent as a basis for his or her rulings. The only permissible legal authority would be the U.S. Constitution, the Iowa Constitution, the Code of Iowa, the Federalist Papers, and ” other writings of the founding fathers.” And, for good measure, the bill provides that it is not reviewable by a court.
Holy wingnuttery, Batman.
I think I understand the purpose of common law, and I think I agree with it.
However, I couldn’t defend it in a debate. Isn’t the point of having a judge to read the law, as it is written, and then do their best to match a case to the law and rule accordingly?
Doesn’t common law tie a judges hands to decisions made by what may have been inferior judges?
The primary problem is that there are probably a million things that haven’t been specifically addressed by statute. The common law is a web of judicial decisions going back centuries which tell how the law addresses specific fact patterns. In my opinion, it’s like the fertile top soil of democracy.
If a statute specifically contradicts the common law decisions, that statute governs. But if there isn’t a statute on point, you go back to the default settings of the common law. Unless you’re willing to go to a Continental European civil law system based on some variant of the Justinian Code, getting rid of the common law is a horrible idea. Civil law systems are more top-down ideas – originally based on the notion that the Emperor had unlimited authority. Common law systems are more organic and grow bit by bit. They’re probably more cumbersome but ultimately probably more flexible.
Ok, so that I understand, if a judge makes a bad call and for whatever reason there is no appeal, another judge in a new case can just say “That ruling was incorrect” and point to how the statute supports his decision?
If so, then that takes away my only complaint about common law, as I understood it.
Depends on who makes the bad call. If it’s an equal level judge, then there is no particular need to follow precedent. But, a trial judge is supposed to follow the lead of an appeals court, even if he thinks it’s a bonehead decision. Appeals court is under the same duty to a state or U.S. supreme court. Federal courts are supposed to follow decisions of state courts on issues of state law and vice versa. And, while they try to respect their own prior decisions, courts are free to abrogate prior decisions when they think the reasoning was flawed or circumstances have changed in some material way.
Let’s add how remarkable it would seem, if by chance we weren’t already all too familiar with the concept of self-annihilating thought, that the same country could produce 220 denominations of Protestantism, a half-dozen competing Bible translations in the last thirty years, and a movement which tells judges they should “just read the words that are there and apply them”.
Though, that said, I’m for it, and am making my plans to move to the Quad Cities the minute the 15th Amendment no longer protects corporations and their shareholders.
Obligatory book recommendation: Jack N. Rakove’s Original Meanings, winner of the 1997 Pulitzer Prize for History.
Leave the common law ALONE……LEAVE IT ALONE!
(But please do something about the filibuster)
I am not a lawyer or a historian. However, this idea raises red flags for me. And I wonder if similar legislation has shown up in any other states? I won’t be surprised if it does before long. I’m watching a TV show right now that raised the word “Nullification” in regard to states vs. fed. I know enough about history to recognize that would cause all shades of chaos.
There is a level on which I actually like this idea, however catastrophic some of the fallout may be. Many of the “higher-level” judges…the ones on whom we rely for these commonlaw precedents…are political appointees, and are therefore prone to making boneheaded (Doug’s word, not mine) decisions as a matter of daily routine. I like the idea of less-partisan, democratically elected judges being afforded some fairly liberal doses of discretion, and therefore not necessarily being bound by the political hackery handed down by their unelected superiors.
I can, however, see how it could also become a circus sideshow if a renegade judge got elected on a wave of populist angst.
At the base of this get-rid-of-common-law nonsense is the notion that everything will be a whole lot simpler if we’d just read the statutes as written. There is no thought that there is more to the law than statutes, that there is interpretation, tradition, case law, legal theory, and as Doug mentioned, many many things that are not specifically addressed by statutes.
While I don’t think that law school should be mandatory–heaven and hell forbid!–I am starting to think that perhaps that no one should be allowed to graduate from high school without taking a course in basics of civil and criminal law, which would include, learning about the differences between civil and criminal law, a little contracts and torts, and some rudimentary legal research. Legal research, particularly in contracts and torts, really drove home to me how important case law is. Maybe, just maybe if more average Joes and Janes understood how the courts and the law work, no one would even begin to propose something like this Iowa legislation. The stupidity of the proposal is just breathtaking.
After reading the above sequence of comments one thing jumped to mind.I recently reported for jury duty and of all the experiences I have had during my lifetime I have learned the most about criminal vs civil law and how law becomes ‘mainstreet’ by being part of the jury process and see it play out.Ive been called to jury duty several times,I cant remember how many at my age,and it’s always a learning experience.
Last week the panel I was on was dismissed after several hours,just when we thought we were going to voir dire, because , we were told, the judge couldnt ‘get everyone together, so everyone go home..thanks for your service’..But that’s how justice sometimes works,but the proccess will continue at some later date.
Ive always found that those chosen for jury duty take law,as carefully explained to us each time by the judge in charge, very seriously and each of us can see oursleves there being judged..That’s not to say we were all eager to be there.
I have not always wanted to take time to report to jury duty,but Im glad that is an obligation for all of us. It’s law on a very basic level for all of us to see first hand.It’s a chance to learn about,and to appreciate, our system of law.
My latest insight is that nothing that works so slow,with so many people involved, could possibly be rigged.
My very first insight into our system of law,as a grade schooler, is that everyone gets to have a lawyer,whether they can afford one of not.
I loved jury duty, the two times I was called, both were criminal cases. I was actually seated as an alternate in the first case, but booted after voir dire in the second case. As an alternate I had to sit through the entire case and deliberations just in case one of the jurors could no longer serve.
My experience as an alternate was similar to Lou’s in that I was pleasantly surprised at how seriously the jurors took their obligation to look at the facts and apply the legal standard for guilt as best they could. The prosecutor, defense attorney, and the judge were very professional.