Basic Legal English 2 The Common Law In The United States.pdf

Rooted in English legal principles, the common law has evolved and adapted over time, reflecting the unique needs and values of American society.. The movement for independence in Americ

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

GROUP WORK

MID-TERM ASSIGNMENT

COURSE:

Basic Legal English 2

TOPIC:

The common law in the United States

Major: Legal English

Class: 4625 – N02

Group: 07

Hanoi, 2023

MINUTE DETERMINING THE INVOLVING LEVEL AND

PARTICIPATION RESULTS IN GROUP WORK ACTIVITIES

Total number of students in the group:

+ Attended: 4

+ Absented: 0

Course: Basic Legal English

Topic: The common law in the United State

Determining the level of participation and results of each student's participation in the involvement of group work activities, the outcomes are as follows:

No.

Students’

ID

number

FULL NAME

Students’ self-assessment Students’

signature

Teachers’ assessment

(in number)

Grade

(in word)

Teachers’ signature

1 462534 Trần Lê Ngọc Minh X

2 462535 Nguyễn Thị Trà My X

3 462544 Lê Thị Phương Thanh X

4 462554 Bùi Mai Uyên X

+ The first teacher’s assessment :……… GROUP LEADER

+ The second teacher’s assessment :………

- The result of the presentation :………

- Teacher grading the presentation :………

- The overall grade :………

- The final assessment of the teacher :………

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TABLE OF CONTENTS

INTRODUCTION 1

CONTENT 2

I O RIGIN OF THE COMMON LAW IN THE US 2

1 Historical background 2

2 Important milestones 2

II T HE DEVELOPMENT OF C OMMON L AW IN THE US 3

1 The growth of statute law and codes 3

2 Federal and state judicial systems 3

3 Personal and property rights through the years have been approved 4

III C OMPARISONS OF MODERN LEGAL SYSTEMS IN B RITAIN AND A MERICA 5

1 Origins and Evolution 5

2 Sources of law 5

3 Judicial Structure and Precedent 6

4 Application of Common Law 6

5 Role of Custom and Equity 7

CONCLUSION 8

The United States legal system is a complex of statutes, regulations, and precedents that govern the nation's affairs At its core lies a legal doctrine known

as common law, a centuries-old tradition that has shaped the American legal landscape and continues to influence its development to this day Rooted in English legal principles, the common law has evolved and adapted over time, reflecting the unique needs and values of American society Understanding the origins, characteristics, and significance of the common law is essential to comprehending the foundations of the American legal system and appreciating its enduring impact In this essay, we will delve deeper into the common law's historical origins, explore its defining characteristics, and examine its impact on the American legal system By understanding the common law's past and present,

we can gain valuable insights into the nature of American jurisprudence and the principles that underpin it As we navigate the complexities of the modern legal landscape, the enduring legacy of the common law reminds us of the importance of precedent, fairness, and the pursuit of justice for all

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I Origin of the common law in the US

1 Historical background

The British legal system proved unsuitable for the conditions and circumstances of the American colonies from the very beginning of the British colonization of America The first English settlers on the Atlantic coast of North America had only basic concepts of law Colonial charters gave them the traditional legal privileges of British citizens, such as habeas corpus and the right

to trial before a jury of their peers

Entering the 18th century, due to the increased need for trade exchanges between the British colonies in America and foreign countries and the mother country of England, the economic and social situation of these countries had significant changes Faced with that situation, theocratic politics gradually lost its inherent position in these colonial countries, and at the same time, a class of people who graduated from lawyer training institutions in London before Immigrants to the Americas began practicing in these new colonies

2 Important milestones

In the mid-18th century, the movement for independence in America broke

out under British imperialism Spokesmen on both sides were lawyers and there were no less than 25 lawyers among the 56 signers of the document Declaration of Independence in 1776.1

After 1776, Republican ideals and enthusiasm for natural law encouraged

some Americans to support a new legal system, but European law was diverse and

1 “Common Law | Definition, Origins, Development, and Examples.” Encyclopedia Britannica, 23 July 1998, www.britannica.com/topic/common-law/Public-law#ref40242.

The movement for independence in America

In the mid-18th century

Some American support a new legal system Blackstone's commentaries

After 1776

The new Philadelphia Constitutional Convention

1781-1787

The Constitution of 1789 created the United States of America

1789

Two schools thought: one supporting British common law and one supporting codification

After America gained independence

expressed foreign languages with unfamiliar ways of thinking and not available in textbook form Blackstone's commentaries, republished in America in 1771, were widely used, although the new British statutes and decisions were officially ignored

Throughout the war with the British until its end in 1781, representatives of

the independent Americas attempted to unite politically, but it was not until 1787

that the new Philadelphia Constitutional Convention was signed with more than half of its members being lawyers and brought into effect the Federal Constitution The Constitution of 1789 created the United States of America from 13 British Crown colonies To this day, the US Constitution continues to be in effect with a few amendments.2

After America gained independence, there was a fierce struggle between

two schools of thought: one supporting British Common law and one supporting codification In 1808, New Orleans separated from Louisiana and adopted the French Civil Code No matter how fierce the struggle between the two schools is,

in the end, the American legal system still belongs to the Common Law family, except for New Orleans, which, since 1812, has become a part of the state of Louisiana The reason is that Common law has been deeply ingrained in the minds

of British people in America and has gradually formed and developed, so it is difficult to completely get rid of the legal system model

II The development of Common Law in the US

1 The growth of statute law and codes 3

After the American Revolution, a drive to replace judge-made law with popular legislation was revived In 1811 Bentham proposed a national civil code to

and campaigned vigorously for the systematic, rational codification of U.S law Except for a code of civil procedure, which was widely copied, Field’s codes found little acceptance in state legislatures Field’s civil code was adopted by five

strong in these jurisdictions that the civil code became just another statute It was read against the background of—and supplemented by—existing case law, rather

2 “Common Law | Definition, Origins, Development, and Examples.” Encyclopedia Britannica, 23 July 1998, www.britannica.com/topic/common-law/Public-law#ref40242.

3 University of Virginia School of Law “Overview of the American Legal System.”

YouTube, 23 Aug 2018, www.youtube.com/watch?v=d75upaDHSvY.

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than being seen as a complete set of authoritative starting points for legal reasoning, as were the Continental civil codes Louisiana, whose legal system is a hybrid of civil- and common-law elements, is the only American state that has a code in the civil-law sense Despite the failure of the codification movement, U.S law became increasingly statutory, so that by the late 20th-century legislation predominated over judge-made law

U.S statutes are not construed as narrowly as those in England, and there is less reluctance to change the older law Statutes are also regularly revised; for example, New York State has had a Law Revision Commission since 1934

2 Federal and state judicial systems 4

The U.S Constitution established the federal Supreme Court, and the 1789 Judiciary Act authorized federal district courts and circuit courts The structure of inferior courts has evolved over time, notably with the establishment of circuit courts of appeal in 1891 and the abolition of the old circuit courts in 1911 The federal court system plays a crucial role in developing and interpreting the common law Landmark Supreme Court decisions, like Marbury v Madison and Brown v Board of Education, have significantly shaped legal doctrines in areas like federalism, civil rights, and criminal justice Lower federal courts also contribute to the common law through their decisions, which can be appealed to higher courts for review and potential precedent-setting Federal courts primarily enforce federal statutes, including those pertaining to taxes, labor, securities, shipping, interstate commerce, antitrust regulations, patents, and copyrights Moreover, to safeguard the fair treatment of out-of-state citizens or corporations incorporated elsewhere, federal courts can handle cases involving diversity of citizenship In these cases, they function as state courts, adhering to state statutes since 1842 and state interpretations of common law and equity since 1938 While federal procedural rules apply, state rules govern crucial matters like statutes of limitations Federal courts also adjudicate claims involving the United States, such

as those seeking to protect federal assets In the absence of statutory provisions for such cases, "federal common law" is applied

State courts serve as the primary forum for resolving disputes arising under state law, including common law principles They have considerable autonomy in interpreting and applying the common law, leading to diverse legal landscapes across different states Therefore, the majority of civil and criminal cases are handled by state courts, with local magistrates presiding over county or district courts Appeals are typically granted once, and some states offer two levels of appeal The state's highest court is generally referred to as the Supreme Court, but there are exceptions In New York, for instance, the Supreme Court is a trial court, and the Court of Appeals serves as the highest court

4 “Common Law | Definition, Origins, Development, and Examples.” Encyclopedia Britannica, 23 July 1998, www.britannica.com/topic/common-law/Public-law#ref40242.

In general, the key features of common law development within judicial systems:

Stare decisis: This principle requires courts to follow the decisions of higher courts in similar cases, ensuring consistency and predictability in the law However, it also allows for flexibility as courts can distinguish prior decisions based on differences in facts or legal arguments

Judicial creativity: Judges have the power to interpret and apply the common law to new situations, creating new legal principles through their decisions This allows the law to adapt to changing social and technological realities

Federalism: The United States federal system creates a complex legal landscape where both federal and state courts contribute to the development of the common law This can lead to tensions and conflicts, requiring careful coordination and interpretation of legal doctrines across different levels of government

In conclusion, the common law, a legal system based on precedent and judicial decisions, has evolved in complex ways within both federal and state judicial systems of the United States This evolution reflects a constant interplay between tradition and innovation, as courts strive to apply established principles to new situations and emerging social realities

3 Personal and property rights through the years have been approved 3.1 1930s

Since the passage of the Fourteenth Amendment in 1868, the rights of life, liberty, and property have been protected from deprivation by both the states and the federal government without due process of law; this has tended to shield private property from government regulation and private contracts from government interference It should be remembered, however, that even after the abolition of slavery following the American Civil War and despite these constitutional safeguards, black men did not have equal rights with white men, and women had far fewer legal rights than men

The use of property, however, is restricted by zoning laws and health and safety measures, and the acquisition of property for public purposes may be justified under the doctrine of eminent domain (the power of the government to take private property for public use without the owner’s consent upon payment of compensation)

Since the late 1930s, the power of the Congress to regulate the economy under its authority to oversee interstate commerce has generally been upheld by the Supreme Court State legislation is, as a rule, also held to be constitutional in this area Minimum-wage laws and the right to collective bargaining in industry are recognized as well

3.2 After the 1950s

Since the 1950s, the emphasis in constitutionality cases has shifted to human rights The requirement of equal protection of the laws and the Civil Rights Act of

(1954) that racial segregation in public schools is unconstitutional and to later

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rulings against using public funds for segregated private schools The Federal Civil Rights Act of 1964 applies not only to official laws and actions but also to the conduct of private citizens Thus, no discrimination on the basis of race, sex, religion, or national origin is allowed in places of public entertainment or resort or

in employment practices by larger firms

Since 1962 the Supreme Court has insisted on regular reapportionment, the redrawing of electoral districts to give each vote roughly the same value It has also interpreted the constitutional prohibition of the establishment of a state religion to render formal prayer and religious instruction in public schools illegal

publishing articles based on the so-called Pentagon Papers, a classified history of U.S military involvement in Indochina The right of women to obtain an abortion

In subsequent decisions, the Court found that the Second Amendment protects an individual right to possess firearms and that spending by corporations and unions on independent political advertising is a form of constitutionally

III Comparisons of modern legal systems in Britain and America

Common law is an essential part of the legal systems in both the United Kingdom and the United States, but there are some key differences between the two Common law is based on the principle of precedent, where past judicial decisions inform future rulings Both countries share a common historical origin in English common law, but have evolved in different directions, leading to variations in their legal systems

1 Origins and Evolution 5

Both the United States and the United Kingdom inherited their common law system from England The English common law evolved during the Middle Ages, based on judicial decisions that established precedents for resolving legal disputes This precedent-based approach emphasized consistency and predictability in the application of law

2 Sources of law 6

2.1 The similarity

Both have precedents, legal documents, and works of legal scholars in the legal source structure

Case law is recognized as a legitimate source, even in practice, superior to written law The rulings of these two countries share the same principle of "Stare decisis" which means that adherence to previous rulings, which are bound between court rulings, are recorded and published for use (in less quantity in the US) Statutes are increasingly valued in the legal systems of both countries

2.2 The difference

Number of rule sources UK law system is richer:

5 "The American Common Law: Its Origins and Evolution" by Grant Gilmore (2002)

6 "Comparing Legal Traditions" by Mathias Reimann and Ole Hammerstein (2008)

The United States has 4 types: United States Constitution, federal and state statutes, administrative regulations, and case law

The United Kingdom has 5 types: common law, equity, case law, statute law, EU legislation, international agreements

Differences in certain types of sources:

+ Case law

In England, case law applies absolutely, while in the U.S it's just passively judge-made law- something that's been rigid and long-born that doesn't suit Americans

To apply the "stare decisis" principle in the use of the statute, however, in the UK, this principle is implemented more strictly According to British law, a superior's sentence is mandatory for his subordinates and even himself So the UK judges did not want to deny his previous rulings or dig deeper into the case The U.S Supreme Court rulings at the state and federal levels are not bound by their own constraints; state courts are not obliged to abide by court rulings in other states, but appropriate judgments by other state courts are often cited; persuasive value depends on which court made that decision

+ Statute

In the United Kingdom, statutes enacted by Parliament are the primary source of law The common law plays a subsidiary role, filling in gaps and interpreting statutes The United Kingdom does not have a codified constitution, and judicial review of legislative acts is limited

In contrast, the United States has a written Constitution that serves as the supreme law of the land The federal and state legislation can enact statutes, but these laws must comply with the Constitution Federal and state legislation, also known as statutory law, is the second important source of law in the US legal system Federal statutes passed during a legislative session are published in the United States Code, which is broken down into titles, with each title tackling a different subject matter State statutes are enacted by state legislatures and apply only within the state Though they regulate activity within a state, they must give way to federal statutes in cases of conflict

Legislations in the UK are composed of: legislation which are directly issued by the Parliament and law documents issued by Parliament authorized Law promulgated by the Parliament has higher validity than a judgment made by a judge Laws often supplement or replace the rules Local legislations are issued by local governments In the United States, there are many laws at both the federal and state levels In addition to the U.S Constitution, laws passed by the U.S Congress have the highest legal value, higher than the rulings of the Federal and State Courts and higher than the respective laws of the States Each State of the United States has the right to enact its own laws that apply within the State

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