“Think like a Lawyer”

What is “The Common Law”?

Broadly speaking the world is divided into common law and civil law systems. Common law tends to be prevalent in countries influenced by British traditions. Historically, common law practice evolved in medieval England. In the rest of the world, civil law dominates. Painting with broad strokes and ignoring the idiosyncrasies of history, the dominance of civil law in the rest of the world is also predominantly for historical reasons. Civil law nations tend to be influenced by the Napoleonic Code, which itself was influenced by the rediscovery of Roman law.

When most people think about law school, they probably think of something along the lines of memorizing a gigantic rule book and applying those rules to various situations. That is essentially what occurs in a civil law system. Civil law systems are predominantly statutory. A statute is a rule that legislature passes, and tend to work as codified systems (this is a slight simplification).

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However, the United States is a common law country. Common law, also known as judge-made law, is law that does not come from codified statutes but rather from judicial decisions. There are typically three levels of courts: trial, appellate, and a court of last resort (the federal court system is structured this way; states with parallel court systems also tend to follow this pattern, though the names of the state courts can be different). Generally speaking, parties first bring their dispute to a trial court, where the court determines the facts of the case and applies the law to the facts to decide which party should win. The parties may then appeal the decision to the appellate court, which then examines if the trial court applied the law correctly. Some appellate decisions are then appealed to the court of last resort. Common law are the rules contained in the decisions of all courts. American law schools tend to focus on reading appellate decisions (decisions coming out of the appellate courts and court of last resort) in order to derive the common law. “Think like a lawyer” is actually shorthand for think like a common law-lawyer.

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This explanation is actually overly simplified in two major ways. The first is that, as any high school civics class will teach you, legislatures like Congress also create laws through its own processes of proposing bills, passing them through the houses, and presenting it to the executive to sign or to veto. Laws passed through legislative processes in the US are statutes which interact with the common law in complex ways. Almost universally, courts accept that statutory law trumps common law if the two conflict, but there is remarkable disagreement over what counts as conflict (and also, if the legislation was adopted with the assumption that the background common law was being left alone or intended to replace the common law). In fact, some argue that American law is moving away from common law towards a more codified statutory system like civil law countries (others argue that if this is not happening, it should be happening).

The second major simplification is how lawyers derive the common law from judicial decisions. The process of working out the common law and its applications is the crux of law school. Saying that common law is just reading decisions and applying its rules, blurs the craft and is like saying that computer programming is “just coding” or that plumbing is just “fixing pipes”. Common law reasoning, similar to programming and plumbing comes with its own professional norms, heritage, and tools. The rest of this article explains the mechanics and underlying theory of common law reasoning.

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