Chapter Two:Common Law

1. Early English Courts

After the Norman s conquered England in 1066, William the Conqueror and his successors began the process of unifying the country under their rule. One of the means they used to do this was the establishment of the king's courts. Before the Norman Conquest, disputes had been settled according to the local legal customs and traditions in various regions of the country. The king's courts sought to establish a uniform set of rules for the country as a whole. What evolved in these courts was the beginning of the common law—a body of general rules that applied throughout the entire English realm. Eventually, the common law tradition became part of the heritage of all nations that were once British colonies, including the United States.

Courts developed the common law rules from the principles underlying judges'decisions in actual legal controversies. Judges attempted to be consistent, and whenever possible, they based their decisions on the principles suggested by earlier cases. They sought to decide similar cases in a similar way and considered new cases with care, because they knew that their decisions would make new law. Each interpretation became part of the law on the subject and served as a legal precedent—that is, a court decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.

In the early years of the common law, there was no single place or publication where court opinions, or written decisions, could be found. Beginning in the late thirteenth and early fourteenth centuries, however, portions of significant decisions from each year were gathered together and recorded in Year Books. The Year Books were useful references for lawyers and judges. In the sixteenth century, the Year Books were discontinued, and other reports of cases became available.

2. Stare Decisis

The practice of deciding new cases with reference to former decisions, or precedents, eventually became a cornerstone of the English and U.S. judicial systems. The practice forms a doctrine called stare decisis6（“to stand on decided cases”）.

（1）the importance of precedents in judicial decision making

Under the doctrine of stare decisis, once a court has set forth a principle of law as being applicable to a certain set of facts, that court and courts of lower rank must adhere to that principle and apply it in future cases involving similar fact patterns. Stare decisis has two aspects:first, decisions made by a higher court are binding on lower courts; and second, a court should not overturn its own precedents unless there is a strong reason to do so.

Controlling precedents in a jurisdiction（an area in which a court or courts have the power to apply the law—see Chapter 3）are referred to as binding authorities. A binding authority is any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction. United States Supreme Court case decisions, no matter how old, remain controlling until they are overruled by a subsequent decision of the Supreme Court, by a constitutional amendment, or by congressional legislation.

（2）stare decisis and legal stability

The doctrine of stare decisis helps the courts to be more efficient because if other courts have carefully reasoned through a similar case, their legal reasoning and opinions can serve as guides. Stare decisis also makes the law more stable and predictable. If the law on a given subject is well settled, someone bringing a case to court can usually rely on the court to make a decision based on what the law has been.

（3）departures from precedent

Although courts are obligated to follow precedents, sometimes a court will depart from the rule of precedent if it decides that a given precedent should no longer be followed. If a court decides that a precedent is simply incorrect or that technological or social changes have rendered the precedent inapplicable, the court might rule contrary to the precedent. Cases that overturn precedent often receive a great deal of publicity.

（4）when there is no precedent

At times, cases arise for which there are no precedents within the jurisdiction. When hearing such cases, called“cases of first impression, ”courts often look at precedents established in other jurisdictions for guidance. Precedents from other jurisdictions, because they are not binding on the court, are referred to as persuasive authorities. A court may also consider various other factors, including legal principles and policies underlying previous court decisions or existing statutes, fairness, social values and customs, public policy, and data and concepts drawn from the social sciences.

Case Study 1：

HAUMSCHILD v. CONTINENTAL

CAS. CO.

Supreme Court of Wisconsin,1959.7

Wis.2d 130,95. W.2d 814

CURRIE, J. This appeal presents a conflict of laws problem with respect to interspousal liability for tort growing out of an automobile accident. Which law controls, that of the state of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is both the state of the forum and of the domicile while California is the state where the alleged wrong was committed. Under Wisconsin law a wife may sue her husband in tort. Under California law she cannot.（cit.） （The trial court, applying California law, granted summary judgment for defendant driver and his insurer and dismissed the suit by the passenger, the driver's ex wife.）

This court was first faced with this question in Buckeye v. Buckeye,234 N. M.342（Wis.1931）. In that case, Wisconsin was the state of the forum and domicile, while Illinois was the state of the place of wrong. It was there held that the law governing the creation and extent of tort liability is that of the place where the tort was committed, citing Goodrich, Conflict of Laws（1st ed.）, p.188. From this premise it was further held that interspousal immunity from tort liability necessarily is governed by the law of the place injury.

The principle enunciated in the Buckeye case and followed in subsequent Wisconsin cases, that the law of the place of wrong controls as to whether one spouse is immune from suit in tort by the other, is the prevailing view in the majority of jurisdictions in this country… However, criticism of the rule of the Buckeye case, by legal writers, some of them recognized authorities in the field of conflict of laws, and recent decisions by the courts of California, New Jersey, and Pennsylvania, have caused us to re-examine the question afresh…

The first case to break the ice and flatly hold that the law of domicile should be applied in determining whether there existed an immunity from suit for tort based upon family relationship is Emery. Emery, 289 P.2d 218（Cal.1995）. In that case, two unemancipated minor sisters used their unemancipated minor brother and their father to recover for injuries sustained in an automobile accident that occurred in the state of Idaho, the complaint alleging willful misconduct in order to come within the provisions of the Idaho“guest”statue. All parties were domiciled in California. The opinion by Mr. Justice Traynor rec ognized that the California court, in passing on the question of whether an unemancipated minor child may sue the parent or an unemancipated brother, had a choice to apply the law of the place of wrong, of the forum, or of the domicile. It was held that the immunity issue was not a question of tort but one of capacity to sue and be sued, and rejected the law of the place of injury as“both fortuitous and irrelevant”. In deciding whether to apply the law of the forum, or the law of the domicile, the opinion stated this conclusion（289P.2d at pages 222—223）：

“…We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disability, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home.”…

We are convinced that, from both the standpoint of public policy and logic, the proper solution of conflict of laws problem, in case similar to the instant action, is to hold that the law of the domicile is the one that ought to be applied in determining any issue of incapacity to sue based upon family relationship.

However, in order to adopt such a conflict of laws rule it will be necessary to overrule at least six prior decisions of this court, and to partially overrule two others.

After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict of laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile. We, therefore, expressly overrule the cases of Buckeye v. Buckeye, supra; ［and five other cas-es］…

It is interesting to note that, if the rule now adopted had been applied in the first six cited overruled automobile accident cases, the result in four of such cases would have been to hold that there was no interspousal immunity from suit, because the parties were domiciled in Wisconsin…

Judgment reversed and case remanded for further proceedings not inconsistent with this opinion. Case study 2：

Tarasoff V. Regents of The University of California

（17 CAL.3D 425,551 P.2D 334,131 CAL.14 SUPREME COURT OF CALIFORNIA,1976）

Facts:On October 27,1969, Prosenjit Poddar killed Tatiana Tarasoff. Tatiana's parents claimed that two months earlier, Poddar had confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the University of California at Berkeley. They sued the university, claiming that Dr. Moore should have warned Tatiana and/or should have arranged for Poddar's confinement.

Issue:Did Dr. Moore have a duty to Tatiana Tarasoff?

Decision:Yes, Dr. Moore had a duty to Tatiana Tarasoff.

Reasoning:Under the common law, one person generally owes no duty to control the conduct of another or to warn anyone who is in danger. However, courts make an exception when the defendant has a special relationship to a dangerous person or potential victim. A therapist is someone who has just such a special relationship with a patient. No one can be expected to do a perfect job. A therapist must only exercise the reasonable degree of skill, knowledge, and care ordinarily possessed by others in the field. In this case, however, there is no dispute about whether Dr. Moore could have foreseen violence. He actually predicted Poddar would kill Tatiana. Once a therapist determines that a patient poses a serious danger of violence, he must make reasonable efforts to protect the victim. The Tarasoffs have stated a legitimate claim against Dr. Moore.

Exercise one:cloze

I. Cloze

This country（inherited/abandoned）from England a simple rule about abystander's obligations:You have no duty to assist someone in peril unless you created the（danger/hatred）. In Union Pacific Railway Co. v. Cappier, through no fault of the railroad, a train（struck/killed） a man, severing an arm and a leg. Railroad employees saw the incident happen but did（anything/nothing）to assist him. By the time help arrived, the（driver/victim）had died. In this 1903 case, the court held that the railroad had no duty to help the injured man. The court declared that it was legally irrelevant whether the railroad's conduct was inhumane.

II. Cloze

Ernesto Parra was a（customer/boss）at the Jiminez Restaurant when food became lodged in his（throat/stomach）. The employees did not use the Heimlich maneuver or any other method to try to（save/kill）him. Parra（starved/choked）to death. Was the restaurant liable? No, said the Illinois Appeals Court. The restaurant had no obligation to do anything. The bystander rule, that hardy oak, is still （dead/alive）and well.

Exercise two:Translation

1. This country inherited from England a simple rule about abystander's obligations:You have no duty to assist someone in peril unless you created the danger.

2. Stare decisis means“let the decision stand.”And describes a court's tendency to follow earlier cases. It is the essence of the common law. The phrase indicates that once a court has decided a particular issue, it will generally apply the same rule in future cases.

3. The common law is judge-made law. It is the sum total of all the cases decided by appellate courts. Two hundred years ago, almost all the law was common law. Today, most new law is statutory. But common law still predominates in tort, contract, and agency law, and it is very important in property, employment, and some other areas.