Adoption, Modification, And Abrogation Of Common Law In The U.S

In the U.S., civil matters are governed by English common law (common law) except for the state of Louisiana.  All civil cases in Louisiana are governed by the civil law and not by the common law[i].  Each state will apply the common law after modifying it according to the constitutional provisions of the state[ii].

In the absence of any statutory provision, common law prevails in a state[iii].  Provided the common law should not be contrary to any existing provisions of law given under a statute.  If any state common law is conflicting with the respective state’s constitutional provisions, the common law will modified and applied so that it is no more conflicting with the state constitution[iv].  However, the common law will not be applied if it is found that the common law is intervening with the rights and liberty and rights of the citizens[v].

Normally it is found that when a statue adopts a common law principle, the statute will state in itself the time to which the common law principle belonged.  In all other cases it will be assumed that the common law principle that is adopted in the statute is that one which existed at the time when it was adopted into the statute.  However there are 13 states in the U.S, that have accepted common law in the form as it prevailed in the colonies.

Generally, the U.S. courts while deciding cases according to common law will not rely on English decisions that have been delivered before declaration of independence.  However, sometimes the courts may rely on English decision and the decisions of the state courts of the state where the common law prevails.

A common law when adopted becomes a rule of law that has to be applied and followed in all later state cases[vi].  Example: when a state court recognizes the right to litigate in forma pauperis as a common law right in one case, then the court needs to accept that common law right in all other cases that falls under the same category

A state can show reluctance in applying those principles of common law that are inapplicable to its localities[vii].  Hence, it is not mandatory for a state that has adopted certain common law principles to apply all the principles of the common law.  Thus common law rules will be applied in a state only if the rules go in harmony with the condition prevalent in the state.  However, the common law applied to one state may not be applied to another state as the political and geographical conditions prevailing in different localities are different[viii].  But the general rule followed by the state is that different common law will not be applied to different localities of the same state.

Although, the rule of stare decisis says that the court should follow the precedents, the courts are given the freedom and liberty to develop a common law according to the changing conditions of a society[ix].  Thus a court is free to deviate from the precedents and amend the common law[x].  To make the common law suitable to the requirements of a changing society the court can either declare a common law as invalid, or modify and revise the antiquated common law[xi].  The duty of the court is to make a new law that is in peace and harmony with the present conditions.  The new rule or law that is made by the court should be capable of meeting the demands of justice[xii].  The basic idea behind this power of the court is that the courts need not follow a law that is not supported by reason or logic.

However, there are certain limitations imposed upon the courts that tend to modify or alter the common law.  Those limitations include:

  • the common law doctrines that has been firmly established in the society cannot be altered or modified;
  • the common law doctrines that has been adopted as the rule of practice cannot be altered or modified[xiii]; and
  • the common law doctrines, that need to be amended by the legislature in the opinion of the court, cannot be altered or modified[xiv].

Apart from the courts, state or congress can also alter the common law doctrines[xv].  However, a state cannot alter the common law doctrines if the Federal Constitution imposes a ban on the state[xvi].

Generally the state alters the common law under two circumstances:

  • to bring changes in the administrative and remedial matters[xvii]; and
  • to create new duties and liabilities[xviii].

In situations of conflict between the common law and the existing statutes, the statute will prevail over the common law.  When the statute provides a right that already exists in the common law, then such right will be considered as accumulative to the common law.  Whereas, if a statute goes for modifying a common law then the common law will be treated as repealed[xix].  Sometimes, the statute may lay down a rule of practice without canceling the rule of practice that existed in the common law, and then the rule of practice laid down by the statute will operate instead of the common law practice[xx].

[i] Reed v. Bord, 206 W. Va. 568 (W. Va. 1999)

[ii] Territory v. Flowers, 2 Mont. 531 (Mont. 1877)

[iii] Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269 (Nev. 1889)

[iv] Courand v. Vollmer, 31 Tex. 397 (Tex. 1868)

[v] Pierson v. Lane, 60 Iowa 60 (Iowa 1882)

[vi] Hammond v. Justice’s Court of Los Angeles Township, 37 Cal. App. 506 (Cal. App. 1918)

[vii] Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269 (Nev. 1889)

[viii] State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439 (Neb. 1945)

[ix] McGarvey v. McGarvey, 286 Md. 19 (Md. 1979)

[x] Brock Equities v. Josephthal, Lyon & Ross, 1995 U.S. Dist. LEXIS 8812 (S.D.N.Y. June 22, 1995)

[xi] Beasley v. Beasley, 553 S.W.2d 541 (Mo. Ct. App. 1977)

[xii] Gastonia Personnel Corp. v. Rogers, 276 N.C. 279 (N.C. 1970)

[xiii] Flores v. Flores, 84 N.M. 601 (N.M. Ct. App. 1973)

[xiv] Deposit Bank of Owensboro v. Daviess County, 102 Ky. 174 (Ky. 1897)

[xv] Peterson v. Cisper, 231 Neb. 450 (Neb. 1989)

[xvi] Leverette v. Ala. Revenue Dep’t, 453 F. Supp. 2d 1340 (M.D. Ala. 2006)

[xvii] Jacksonville v. Bowden, 67 Fla. 181 (Fla. 1914)

[xviii] Rubino v. De Fretias, 638 F. Supp. 182 (D. Ariz. 1986)

[xix] Tucson Gas & Elec. Co. v. Schantz, 428 P.2d 686 (Ariz. Ct. App. 1967)

[xx] Valdez v. State, 83 N.M. 720 (N.M. 1972)


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