What is common law? In legal terms, common law is “the body of judicial law developed by judges, courts, and similar medieval quasi-judicial bodies under the influence of statutory law.” The defining feature of common law is that it derives as precedent from the precedents of judgments and decisions previously announced by judges. Unlike the common-law, which exists for the support and guidance of the courts, equity law recognizes no authority other than the courts to declare precedent.
Of course, the statutory construction process is much more streamlined, and therefore more prone to error. In common law, there are two sorts of precedent: judicial and extra-judicial. Judicial precedents are generally derived from cases decided by lower courts. Extra-judicial precedents are generally required from decisions of higher courts. However, there are some cases where an extra-judicial precedent can be generated from a lower court decision that is later overruled by a higher court.
What is the role of the courts in declaring precedent? Whenever the legislature or the executive branch takes action under the provisions of a law, or when there is a conflict between regulatory and customary law, the courts will consider granting petition for rehearing or an en banc hearing. If the court is unwilling to hear the case again, it will reverses the case. This is one way the courts ensure that the legislature follows the letter of the law and the Constitution. However, there is another way the courts may alter the law: when they determine that a party has demonstrated an unusual state of affairs that is not clearly distinguishable from other similarly situated parties.
What is the role of the federal courts in deciding what is common law? A number of factors will play into this determination. Chief among them is the extent of the dispute involved. In instances involving criminal law, for example, the courts will usually review a case in order to determine if there is a reasonable likelihood of a defendant being re-cluded from the firearm market because of a firearms violation. This standard of review is often referred to as “penal law.”
One of the reasons that the federal courts have become increasingly reluctant to second-guess legislative enactments has been the result of judicial deference to unwritten laws based upon statutes that have been enacted by state legislators. The states have, for many years, maintained the power to enact “commerce taxing” …