Talk:Common law

Quitclaim

Hi, please forgive me for raising something that is relevant to a different article, not to this one, but I am not sure anyone is active at the article Quitclaim deed, and I know competent experts are here. I just asked a question at Talk:Quitclaim deed about the necessity of a consideration, and it would be great if somebody who knows the subject better than I do can look and see if the article needs expansion. (Or at least satisfy my curiosity on the point I raised.) Thanks. --Doric Loon (talk) 10:04, 29 December 2021 (UTC)

Dear @DoricLoon -- I see you got an answer, and I generally agree with it. Consideration is a concept from contract law, promises for future performance. Quitclaim deeds are complete on execution, with no future promise. At least in the jurisdictions I practice in (all U.S.), no consideration is required for an assignment. (However, my colleagues from other countries tell me that in their countries, consideration is required, so we add the phrase "in return for the receipt of one dollar." I have no idea what countries require this.) DCLawwyer (talk) 11:33, 18 September 2023 (UTC)

Restructuring and Unsourced Paragraphs

G'day, I am here today to discuss some of the many problems that plague this article. Firstly, the structure is too long: there are too many subsections and the Jurisdictions subsection might need trimming. Secondly, there is a tonne of unsourced paragraphs that will require a massive amount of work that I don't have the time or patience for, and judging by the age of the article neither does anyone, and I would rather the article have more quality than quantity in terms of information. Additionally, I have a problem with the article's heavy reliance on the US for examples and usages, as someone who is in a common law jurisdiction that is not the US.

I am making this section because I want to make large changes, but I know without consultation these could be hindered and an edit war could ensue. The changes can summed up as follows: restructuring to remove subsections, removing unnecessary and unsourced paragraphs (although not at the expense of the article), and removing US examples that could be construed as applying to the rest of the common law realms.

Thanks for Reading, IronBattalion (talk) 14:12, 16 September 2023 (UTC).

Dear IronBattalion --

I reverted you.

• A great many of your edits removed something really important. For example, the Coke and Blackstone treatises -- two of the five biggest events in the history of the topic -- you removed them. For me, that was a pretty big tip off that your edits don't reflect a sound knowledge of what's important and what isn't. That edit alone led me to distrust almost everything else you did.

• The pre-IronBattalion section headings explain exactly what's in the section. As you rewrote them, many of the section headings misinform.

• You changed "statutory and regulatory law" to "written law." Common law is written too -- you changed a meaningful contrast to a non-meaningful one. "Statutory law" and "regulatory law" are both terms of art with specific meanings, that contrast to "common law." "Written law" is a term with no established meaning -- with the resultant imprecision, and lack of comprehensibility.

• When you say "too long" what's your metric? (The Encyclopedia Britannica article is over 120 pages of really tiny type on big pages.) "Common law" is a somewhat unusual word, in consolidating multiple connotations, each of which has a contrasting opposite. Which do you think our readers deserve to be left ignorant of?

• When you refer to "more quality than quantity"--what's a specific example? What in the article strikes you as inadequate "quality," and what's your metric?

• "removing US examples that could be construed as applying to the rest of the common law realms" -- I'd challenge you on that one. First, I'd challenge you to identify examples of examples that are not labelled as U.S. and that illustrate a principle that doesn't apply elsewhere. Obviously I'm only licensed in the U.S., but I read cases in my field (international commercial law) from the U.K., Canada, Australia, and the style of reasoning is comfortably similar in all four jurisdictions (and remarkably different than the style of reasoning that prevailed before 1880) -- I'd challenge you to identify something that's a misleading outlier. Second, if you dig through the history, you'd find that most examples are there to respond to questions or to illustrate why a previous edit was incorrect -- they're there to contribute understanding where at least one past editor had a misunderstanding. Third, isn't the right answer to add a counterbalancing example that shows the "compare and contrast" that you think to be applicable, rather than remove?

The article presents today's professional view of the topic. Admittedly, that doesn't square with the layman's understanding of the term "common law" (that's what a couple of past edit wars have been about -- non-lawyers injecting lay incorrect understanding.) The lay and older understanding started to erode in the 1880's, and was pretty much completely extinct by 1920 in the U.S., and worldwide today. That history is essential to understand today's state of affairs, but it's history, not helpful as a way to understand the current way of the world. No common law judge anywhere in the world will give you much credibility if you argue a 1650 precedent just because it's precedent. If it doesn't make practical sense today, no judge will pay attention to it. And that's what the article explains.

Of course the article is imperfect, and could use cleanup. But with a scalpel, not a machete. It's a consensus view of several serious lawyers--it's as accurate and didactic as we know how to make it, and it chooses the topics that we think are important to general readers. So exercise some care.

DCLawwyer (talk) 22:40, 17 September 2023 (UTC)

Putting his/her other edits aside, I agree with IronBattalion that this article is too long. According to WP:Article size, a page with more than 9000 words or 60 kb of prose "probably should be divided or trimmed", and one with more than 15,000 words or 100 kb of prose "almost certainly should be divided or trimmed". This article currently has 13,600 words and 84.5 kb of prose. It has 65 separate sections. I doubt this is a topic whose scope justifies the added material. We ought to trim its content and/or split parts of it off into new articles.  White Whirlwind  04:15, 21 September 2023 (UTC)

The US Outlawed Common Law in 1812

The United States outlawed common law in 1812 in the Supreme Court case, 'United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812)'. Why is it still called a common law country? Lord Milner (talk) 08:05, 3 February 2024 (UTC)

United States v. Hudson. United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812), was a case in which the United States Supreme Court held that Congress must first enact a constitutional law criminalizing an activity, attach a penalty, and give the federal courts jurisdiction over the offense in order for the court to render a conviction.

That event is a feature of common law. A court redefined law by a ruling that sets precedent. As that reads, it is limited to when a court may render a conviction. There is a lot more to common law than the rendering of convictions. Eg. All native indigenous law remains the law of the land until superseded by new law, whether legislated, or established by new precedent.

In terms of overturning any common law, the United States v. Hudson and Goodwin is quite limited, as it deals with international matters, not indigenous law. Through its recognition as precedent, it strengthens the principle of common law, in that the “defining characteristic of common law is that it arises as precedent”. SmokeyJoe (talk) 21:40, 3 February 2024 (UTC)

common law courts

This article talks in several places about common law courts. But nowhere does it explain what a common law court is. 2602:306:BC65:4D59:C0F7:2E1C:E2F5:3D57 (talk) 04:42, 29 February 2024 (UTC)

Hmm, a "common law court" is just a court that uses common law, or a court in a common law country. There's not much to add beyond that, but we could clarify that. Alyo (chat·edits) 15:07, 29 February 2024 (UTC)

That seems to be accurate for how this term is (confusingly) used in this confusingly scoped article, but just for the benefit of anyone stumbling across this conversation in the future: in ordinary usage, "common law court" would refer to a "law court", i.e. a court that was not a court of equity and thus did not have the authority to grant equitable remedies such as injunctions. The gradual elimination of the law/equity distinction has made this a bit obscure to modern readers but see e.g. this 1919 article. Or of course one can always look to Blackstone.

There are at least four distinct encyclopedic meanings of "common law" -- (1) an unhelpful synonym for "case law"; (2) a legal tradition originating in medieval England and encompassing some dozens of modern countries, which ironically rely for the most part on statutory law; (3) a particular body of mostly-English customary law, as systematized by Coke, Blackstone, et al.; and (4) (as in "common law court") the opposite of equity. I think this article is mostly about 1 and 3 presently, although it's not always entirely clear and it's difficult to shake the impression that we've simply thrown all the different meanings into a blender. Although thorough reform would be a major job, I'd suggest it would be a good idea to remove the current uses of the phrase "common law court," which are at the very least unnecessary and unhelpful. -- Visviva (talk) 21:44, 26 October 2024 (UTC)