class1

1.Schauer says his description of the Common Law is a “caricature,” an “archetype, not the reality,” and “has no real-world instantiations.” So, how should we think of the description of the Common Law he gives us?

• everyone sees CL different

• highlights certain aspect to help distinguish it (important features)

• ideal type- deep analytical interpretation and thought

• doesnt correspond exactly to the reality of the judicial practice, how they operate or how they would operate under ideal conditions

Why does Schauer describe his version of the Common Law as a "caricature" or an "archetype" with no real-world instantiations?

Because it is an ideal type meant for deep analytical interpretation, not an exact description of how real judicial practice operates.

If Schauer's description of Common Law isn't the actual reality, what is its main purpose?

It highlights certain important features to help us distinguish the Common Law from other legal systems.

Does Schauer’s "archetype" of the Common Law show how judges would operate under ideal conditions?

No. It does not correspond to how judges actually operate, nor how they would operate under ideal conditions.

How do different people view the Common Law according to these notes?

Everyone sees the Common Law differently, which is why Schauer uses a specialized analytical model rather than a universal definition.

ideal model

• A model of a social practice that emphasizes – and usually exaggerates – its most fundamental elements.

• Does not correspond exactly to the reality of that social practice, but highlights central characteristics of it, how they operate or how they would operate under ideal conditions.

what is an ideal model in the context of social practices?

A model that emphasizes—and usually exaggerates—the most fundamental elements of a social practice.

Does an ideal model correspond exactly to reality?

No. It does not match reality exactly. Instead, it highlights central characteristics, showing how they operate or how they would operate under ideal conditions.

2. Schauer describes the Common Law by discussing what it is not – the Civil Law. What are some of the differences between these two legal systems?

3. Schauer frequently refers to the importance of judges in the Common Law. What are some of the ways he describes the role of judges?

• absence of a law code- no definite, master set of laws

  • ex. no written constitution

  • nothing to consult

  • unwritten- the law is the forum of judicial opinions these used to not be written by t graduates became recorded in year book and law reports

• judge made law - the law is decided in resolving specific cases “case law”

  • basis of decision can be from a sense of fairness or reasonableness, customs, good policing, prior cases, statues ect

How does Frederick Schauer primarily describe the Common Law system?

He describes it by contrasting it with what it is not—the Civil Law system.

What is a defining characteristic regarding the set of laws in a Common Law system?

There is an absence of a law code, meaning there is no single, definite, master set of written laws (for example, no written constitution).

What does it mean that Common Law is historically "unwritten"?

There is nothing to consult in a master code. Instead, the law exists in the forum of judicial opinions, which were historically unrecorded but later tracked in Year Books and law reports.

Why is Common Law referred to as "judge-made law" or "case law"?

The law is explicitly decided and developed by judges while they are resolving specific, individual cases.

What are the various sources or bases a Common Law judge can use to make a decision?

• A sense of fairness or reasonableness

• Local customs

• Good policing

• Prior cases (precedent)

• Statutes

absence of a law code

No definitive, master set of laws.

• “Unwritten” – The law is the form of judicial opinions. These
  used to not be written but gradually became recorded in year
  books and law reports

What is the primary characteristic regarding a master set of laws in a common law system?

Absence of a law code. There is no definitive, master set of laws.

What does it mean when early common law is described as "unwritten"?

The law exists in the form of judicial opinions rather than statutes.

How were "unwritten" judicial opinions gradually recorded over time?

They were compiled into year books and law report

Judge-made law

The law is decided in resolving specific cases. “Case
law.”

• Basis of decision can be from a sense of fairness or

  reasonableness, customs, good policy, prior cases, statutes,

  etc.

4.What does Schauer mean when he states that Common Law rules are “defeasible?”

its not absolute

Defeasible/defeasibility

A legal rule in a common law system is subject to being defeated, undone, or revised by judges in new cases if the circumstances are different from past applications of the rule

CL rules are “defeasible”

In the Common Law method, “judges have the power to change rules in the very act of applying them”

riggs v palmer

The New York Statute of Wills is the rule unless a person would benefit from their own wrongful act leading to the death of testator.

henningsen v bloomfield motors

Contractual parties are bound by their written agreements unless drastically unequal bargaining power would undermine the fairness of a contract

Incrementalism of the case-by-case method

Very slow pace of legal change

Constrained by the facts of a particular case

Rules emerge “inductively” from the facts

• inductive reasoning

inductive reasoning

General rules are arrived at from the resolution of specific cases.

sources of law CL

Judicial decisions – Historically unwritten, later collected in law reports

dev of law CL

Incremental – Case-by-case method. Based on facts and past judicial decisions

role of judge CL

Issues opinions (case law), presides over cases,

determines questions of law

fact finding CL

Adversarial – Disputing parties bring a case to court. Each presents facts. Juries decide the true account

source of law civ law

Civil law code – Written, comprehensive, based on

general principles. Enacted by legislature (or sovereign)

dev of law civl law

Periodic – Adoption of Code, later amendments by the legislature

role of the judge civ law

Investigates and presides over cases. Applies the Code to specific cases

fact finding civ law

Inquisitorial – Judges investigate cases and determine facts

whats so special about lousiana

• Founded as a French colony in 1682

• Becomes part of the U.S. in 1803 in the Louisiana Purchase

• Adopted the Napoleonic Code, a civil law code

• Has a mixed legal system now with influences of both civil law and common law