When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury.
The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract "privity" with the negligent party. A first exception to this rule arose in , in the case of Thomas v. Winchester , [56] when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger". Thomas relied on this reason to create an exception to the "privity" rule. In, , New York held in Statler v.
Yet the privity rule survived. In Cadillac Motor Car Co. However, held the Cadillac court, "one who manufactures articles dangerous only if defectively made, or installed, e. Finally, in the famous case of MacPherson v. The facts were almost identical to Cadillac a year earlier: It may be that Statler v. If so, this court is committed to the extension.
The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold Devlin v. Smith, supra is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn Statler v.
What is true of the coffee urn is equally true of bottles of aerated water Torgesen v. We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. Pelham Hod Elevating Co. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought. We hold, then, that the principle of Thomas v.
Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.
There must be knowledge of a danger, not merely possible, but probable. Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger".
MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of Winterbottom , that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.
The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes. All law systems rely on written publication of the law, [60] so that it is accessible to all.
Common law decisions are published in law reports for use by lawyers, courts and the general public. After the American Revolution, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.
West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. Government publishers typically issue only decisions "in the raw," while private sector publishers often add indexing, editorial analysis, and similar finding aids. In common law legal systems, the common law is crucial to understanding almost all important areas of law.
For example, in England and Wales , in English Canada, and in most states of the United States , the basic law of contracts , torts and property do not exist in statute, but only in common law though there may be isolated modifications enacted by statute. As another example, the Supreme Court of the United States in , [62] held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage , because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law. In almost all areas of the law even those where there is a statutory framework, such as contracts for the sale of goods, [63] or the criminal law , [64] legislature-enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the interstitial common law.
To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. In common law jurisdictions in the sense opposed to "civil law" , legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law. For example, in most U. Codification is the process of enacting a statute that collects and restates pre-existing law in a single document—when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.
In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated—for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. For this reason, many modern American law schools teach the common law of crime as it stood in England in , because that centuries-old English common law is a necessary foundation to interpreting modern criminal statutes.
With the transition from English law, which had common law crimes, to the new legal system under the U. Constitution , which prohibited ex post facto laws at both the federal and state level, the question was raised whether there could be common law crimes in the United States. It was settled in the case of United States v. Hudson , [65] which decided that federal courts had no jurisdiction to define new common law crimes, and that there must always be a constitutional statute defining the offense and the penalty for it. Still, many states retain selected common law crimes.
For example, in Virginia, the definition of the conduct that constitutes the crime of robbery exists only in the common law, and the robbery statute only sets the punishment. By contrast to statutory codification of common law, some statutes displace common law, for example to create a new cause of action that did not exist in the common law, or to legislatively overrule the common law. An example is the tort of wrongful death , which allows certain persons, usually a spouse, child or estate , to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one.
Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute typically, an upper limit on the amount of damages. Courts generally interpret statutes that create new causes of action narrowly—that is, limited to their precise terms—because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision cf.
Where a tort is rooted in common law, all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
In the United States, the power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution, Article III sections 1 and 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority Madison , 5 U.
Later cases interpreted the "judicial power" of Article III to establish the power of federal courts to consider or overturn any action of Congress or of any state that conflicts with the Constitution.
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The interactions between decisions of different courts is discussed further in the article on precedent. The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits.
District court decisions are not binding precedent at all, only persuasive.
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Most of the U. Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc , and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court.
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Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled. In the jurisdictions of England and Wales and of Northern Ireland , since , the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts; it is the final court of appeal for civil law cases in all three of the UK jurisdictions but not for criminal law cases in Scotland.
From to , this power lay with the House of Lords , granted by the Practice Statement of Canada's federal system, described below , avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts. The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States.
Because there is reasonably precise guidance on almost every issue, parties especially commercial parties can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency. As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right.
Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. In contrast, in jurisdictions with very weak respect for precedent, [71] fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides.
In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance unless the written law is very clear and kept updated and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties. This is the reason [72] for the frequent choice of the law of the State of New York in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States.
Somewhat surprisingly, contracts throughout the world for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. Because of its history as the United States' commercial center, New York common law has a depth and predictability not yet available in any other jurisdictions of the United States.
Similarly, American corporations are often formed under Delaware corporate law , and American contracts relating to corporate law issues merger and acquisitions of companies, rights of shareholders, and so on. The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result. Likewise, for litigation of commercial disputes arising out of unpredictable torts as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph , certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases.
For example, London is considered the pre-eminent centre for litigation of admiralty cases. This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation.
For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures—but, conversely, that tends to make the statute more difficult to read the United States tax code is an example. The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn.
The doctrine of precedent developed during the 12th and 13th centuries, [79] as the collective judicial decisions that were based in tradition , custom and precedent.
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The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases as distinct from criminal cases , was devised as a means of compensating someone for wrongful acts known as torts , including both intentional torts and torts caused by negligence , and as developing the body of law recognizing and regulating contracts.
The type of procedure practiced in common law courts is known as the adversarial system ; this is also a development of the common law.
Case citation
The early development of case-law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books , of which the first extant was published in , the same year that Bracton died. In , Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims.
The jury reached its verdict through evaluating common local knowledge , not necessarily through the presentation of evidence , a distinguishing factor from today's civil and criminal court systems. Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges.
These decisions would be recorded and filed. In time, a rule, known as stare decisis also commonly known as precedent developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another.
Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was at least in theory, though not always in practice common throughout the whole country, hence the name "common law". Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical church courts, brought him and England into conflict with the church, most famously with Thomas Becket , the Archbishop of Canterbury.
The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes see also Constitutions of Clarendon. The English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's Palace of Westminster , permanently except in the vacations between the four terms of the Legal year.
Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law [84] —"legislating from the bench" is a traditional and essential function of courts, which was carried over into the U.
However, the view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. In England, judges have devised a number of rules as to how to deal with precedent decisions. The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct. By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.
Often, they were clerics trained in the Roman canon law. Signs of this can be found in Blackstone's Commentaries on the Laws of England , [89] and Roman law ideas regained importance with the revival of academic law schools in the 19th century. The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice Edward Coke , in his treatise, Institutes of the Lawes of England in the 17th century. The next definitive historical treatise on the common law is Commentaries on the Laws of England , written by Sir William Blackstone and first published in — A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts i.
Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. Other examples of reception statutes in the United States, the states of the U. Yet, adoption of the common law in the newly-independent nation was not a foregone conclusion, and was controversial.
Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception. The Jeffersonians preferred a legislatively-enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: Even advocates for the common law approach noted that it was not an ideal fit for the newly-independent colonies: Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited.
Lawyer later president John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in , lawyers in Massachusetts donated their books to found a law library. Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions.
Many examples are familiar in everyday speech even today, " One cannot be a judge in one's own cause " see Dr. Bonham's Case , rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke , presented the common law as a collection of such maxims. Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
In an lecture at Harvard, he wrote: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In the early 20th century, Louis Brandeis , later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in his briefs , and extensive appendices presenting facts that lead a judge to the advocate's conclusion.
By this time, briefs relied more on facts than on Latin maxims. Reliance on old maxims is now deprecated. The degree to which these external factors should influence adjudication is the subject of active debate, but it is indisputable that judges do draw on experience and learning from everyday life, from other fields, and from other jurisdictions.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common law system would petition the King in person. For example, they might argue that an award of damages at common law as opposed to equity was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity , administered by the Lord Chancellor , in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, [97] even though it was established by the 17th century that equity should prevail.
In England, courts of law as opposed to equity were combined with courts of equity by the Judicature Acts of and , with equity prevailing in case of conflict. In the United States, parallel systems of law providing money damages , with cases heard by a jury upon either party's request and equity fashioning a remedy to fit the situation, including injunctive relief, heard by a judge survived well into the 20th century.
The United States federal courts procedurally separated law and equity: This became problematic when a given case required both money damages and injunctive relief. In , the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action". The distinction survives to the extent that issues that were " common law as opposed to equity " as of the date of adoption of the Seventh Amendment are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.
Delaware , Mississippi , and Tennessee still have separate courts of law and equity, for example, the Court of Chancery. In many states there are separate divisions for law and equity within one court. For centuries, through the 19th century, the common law recognized only specific forms of action , and required very careful drafting of the opening pleading called a writ to slot into exactly one of them: Under the old common law pleading standards, a suit by a pro se "for oneself," without a lawyer party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.
One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements. The main alternative to the common law system is the civil law system, which is used in Continental Europe , and most of the rest of the world. In common law jurisdictions, nearly every case that presents a bona fide disagreement on the law is resolved in a written opinion. The legal reasoning for the decision, known as ratio decidendi , not only determines the court's judgment between the parties, but also stands as precedent for resolving future disputes.
In contrast, civil law decisions typically do not include explanatory opinions, and thus no precedent flows from one decision to the next. In contrast, in civil law systems, individual decisions have only advisory, not binding effect. In civil law systems, case law only acquires weight when a long series of cases use consistent reasoning, called jurisprudence constante. Civil law lawyers consult case law to obtain their best prediction of how a court will rule, but comparatively, civil law judges are less bound to follow it. For that reason, statutes in civil law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court.
Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator. Common law courts usually use an adversarial system , in which two sides present their cases to a neutral judge.
The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore, the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier. Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused.
The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change her or his evidence at trial.
Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to be served if any will be released by the trial jury together with the president of the trial bench, following their common deliberation.
There are many exceptions in both directions. For example, most proceedings before U. The role of the legal academy presents a significant "cultural" difference between common law connotation 2 and civil law jurisdictions. In both systems, treatises compile decisions and state overarching principles that in the author's opinion explain the results of the cases. In neither system are treatises considered "law," but the weight given them is nonetheless quite different. In common law jurisdictions, lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.
In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. In contrast, in civil law jurisdictions, courts give the writings of law professors significant weight, partly because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale had to come from somewhere else: The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence similar to case law but not binding in civil law countries, and the growing importance of statute law and codes in common law countries.
Examples of common law being replaced by statute or codified rule in the United States include criminal law since , [65] U. But note that in each case, the statute sets the general principles, but the interstitial common law process determines the scope and application of the statute. This showed how a historically distinctly common law principle is used by a court composed of judges at that time of essentially civil law jurisdiction.
The former Soviet Bloc and other Socialist countries used a Socialist law system. Much of the Muslim world uses Sharia also called Islamic law. Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec which follows the law of France in part , South Africa and Sri Lanka which follow Roman Dutch law , where the prior civil law system was retained to respect the civil rights of the local colonists.
The remainder of this section discusses jurisdiction-specific variants, arranged chronologically. Scotland is often said to use the civil law system, but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in see Legal institutions of Scotland in the High Middle Ages , founded on the customary laws of the tribes residing there.
Historically, Scottish common law differed in that the use of precedent was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent , [] and principles of natural justice and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances.
This is not to say that the substantive rules of the common laws of both countries are the same although in many matters particularly those of UK-wide interest they are similar. Scotland shares the Supreme Court , with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas.
For instance, the modern UK law of negligence is based on Donoghue v Stevenson , a case originating in Paisley, Scotland. Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the Supreme Court of the United Kingdom before October , final appellate jurisdiction lay with the House of Lords. The centuries-old authority of the common law courts in England to develop law case by case and to apply statute law [84] —"legislating from the bench"— is a traditional function of courts, which was carried over into the U.
The state of New York , which also has a civil law history from its Dutch colonial days, began a codification of its law in the 19th century. In such citations, it is usual in these jurisdictions to apply square brackets "[year]" to the year which may not be the year that the case was decided: The Internet brought with it the opportunity for courts to publish their decisions on websites and most published court decisions now appear in that way.
The resulting flood of unpaginated information has led to numbering of paragraphs and the adoption of a medium-neutral citation system. This usually contains the following information:. Rather than utilizing page numbers for pinpoint references, which would depend upon particular printers and browsers , pinpoint quotations refer to paragraph numbers. The conjunction "versus" is abbreviated to "v" in Commonwealth countries and to "v.
In common law countries with an adversarial system of justice, the names of the opposing parties are separated in the case title by the abbreviation v —usually written as v in Commonwealth countries and always as v. The abbreviation represents the Latin word versus , which means against. When case titles are read out loud, the v can be pronounced, depending on the context, as and , against , versus , or vee. In the United States, there is no consensus on the pronunciation of the abbreviation v. This has led to much confusion about the pronunciation and spelling of court cases: During oral arguments in Planned Parenthood v.
Casey , the participants demonstrated the lack of consensus by using different pronunciations of v. Solicitor General Ken Starr even managed to use all three of the most common American pronunciations interchangeably: This is the process of analysis that is quite familiar to the Court, very lengthily laid out by Justice Harlan in his dissent in Poe versus Ullman, and then adumbrated in his concurring opinion in Griswold against Connecticut. Well, I think that that is the necessary consequence of Roe vee Wade.
Legal citation in Australia generally mirrors the methods of citation used in England. As in Canada, there has been divergence among citation styles. There exist commercial citation guides published by Butterworths and other legal publishing companies, academic citation styles and court citation styles. Each court in Australia may cite the same case slightly differently. There is presently a movement in convergence to the comprehensive academic citation style of the Australian Guide to Legal Citation published jointly by the Melbourne University Law Review and the Melbourne Journal of International Law.
Australian courts and tribunals have now adopted a neutral citation standard for case law. The format provides a naming system that does not depend on the publication of the case in a law report. Most cases are now published on AustLII using neutral citations. So the above-mentioned Mabo case would then be cited like this: There is a unique court identifier code for most courts. The court and tribunal identifiers include:. There are a number of citation standards in Canada. Many legal publishing companies and schools have their own standard for citation.
Since the late s, however, much of the legal community has converged to a single standard—formulated in The Canadian Guide to Uniform Legal Citation , commonly known as the " McGill Guide " after the McGill Law Journal , which first published it. The following format reflects this standard:. The Style of Cause is italicized as in all other countries and the party names are separated by v English or c French. Prior to the appellant party would always be named first. However, since then case names do not switch order when the case is appealed. Undisclosed parties to a case are represented by initials e.
Criminal cases are prosecuted by the Crown, which is always represented by R for Regina queen or Rex king. Constitutional references are always entitled " Reference re " followed by the subject title. If the year of decision is the same as the year of the report, and the date is a part of the reporter's citation, then the date need not be listed after the style of cause. If the date of the decision is different from the year of the report, then both should be shown. Where available, cases should be cited with their neutral citation immediately after the style of cause and preceding the print citation.
This format was adopted as the standard in , in the sixth edition of the McGill Guide. Prior to this format, the opposite order of parallel citation was used. Most full stops are also removed from styles of cause. The seventh edition also further highlights the significance of neutral citations i. In the Canadian Judicial Council adopted a neutral citation standard for case law.
A list of the court identifiers include:. There is no official standard for case citations in Denmark, and the citation format also varies depending on how the reporter in question indexes their judgments i. However, citations usually include the same components:. The above example is from a reporter that cites cases by page number. Another reporter, Tidsskrift for Skatter og Afgifter, gives each case a number instead. The above case was given the identifier and would be cited using instead of a page number e.
Cases that have not been published in a reporter should be cited using the name of the court, the date of the decision and the court's own case number. As with reporter citations, the composition and wording of the citation can vary, the key is to include enough information for the reader to be able to acquire it. In Germany there are two types of citation: In most law journals, the articles themselves only use the shortened form; the full citations for all articles sometimes are summarized at the beginning of that journals edition.
The most important cases of the Federal Constitutional Court of Germany are published by the court in its official collection. Starting in , the court also publishes the BVerfGK collection, containing decisions made only by a Kammer , a specific part of the court. For the meaning of the different case numbers of the BVerfG see the German article.
If decisions are not yet published by the court, or will not be published at all, law journals can be cited, e. Where NJW stands for the law journal Neue Juristische Wochenschrift , is the year, the page of the beginning and the cited page s — "f. In general, citations of the official collections are preferred. For other courts, generally the same rules apply, though most do not publish an official collection, so they must be cited from a law journal.
India's vast federated judicial system admits to a large number of reporters, each with their own style of citation.
There are over law reports in India — subject-wise and state province -wise, authorized and unauthorized. These reports however lag behind other journals in the speed of reporting. While decisions themselves are uploaded by the Supreme Court itself on www. However, some reporters have been authorised to publish the Court's decisions. Those citations looked like this:. The SCC also have a separate series of subject-based reporting of the decisions of the Supreme Court:.
Surjya Kumar Das v. Only the shortened indicator of the forum changes for different High Courts. The Calcutta Weekly Notes is the oldest continuously published law journal in India having uninterrupted publication since reporting reportable decisions of the High Court at Calcutta. Reports are cited in the style CWN where refers to the volume number calculated at one volume per year from the initial volume, which had been published in Additionally, a number of other report series exist for specialist areas such as Family, Employment and Tax Law.
New Zealand courts and tribunals have begun to adopt a neutral citation standard for case law. Where both a neutral citation and a reporter citation exist, the neutral citation should come first e. Despite the long-standing civil law tradition in the Philippines, reliance on judicial precedents has become indispensable since the period of American rule.
Supreme Court decisions are expressly recognized as part of the internal law, and are thus frequently cited in court decisions and legal pleadings. Though there is only one Supreme Court in the Philippines, the citation of its decisions varies, depending on which report of a case is relied on by the person citing that case.
The Philippine Reports is the official reporter of decisions of the Supreme Court of the Philippines. The standard format for citation of the Philippine Reports is:.
As of present, Philippine cases are contained in quarterly issues. There are already over SCRAs in circulation. In the last few decades, the Philippine Reports has suffered from production problems, resulting in long delays in publication, as well as significant gaps within its published series. The proper format for citation of the Supreme Court Reports Annotated is:.
Owing to the delays in the regular publication of the Philippine Reports, reliance on the SCRA has been tolerated, although if a case may be found at the Philippine Reports, it is preferred that the official reporter be cited in lieu of the SCRA. As there are no official or unofficial reporters that regularly publish decisions of the Court of Appeals and other lower courts, citation of their decisions hews to the same format as cases not reported either in the Philippine Reports or the SCRA.
Citations vary by court and by language. Cases of the Swiss Federal Supreme Court are cited as follows: In this example, is the annual issue of the court reports, II the part indicating the division of the Court, and the page on which the decision begins. Supreme Court decisions not selected for official publication are cited as Urteil [des Bundesgerichts] 5C.
In this example, 5C is the division of the Court, the case number and the year in which the case was opened. The citation style for cases of the inferior federal courts of Switzerland is similar. This system was extended to other parts of the High Court in Judgments with neutral citations are freely available on the British and Irish Legal Information Institute website www. Neutral citations identify judgments independently of any series of reports, and cite only parties, year of judgment, court and case number. These abbreviations are generally followed by an abbreviation indicating the court or division e.
Admin, Ch, Crim, Pat. If a neutral citation is available for a judgment, it should immediately follow the party names. This means that a report of the case and the judgment can be found in the volumes, vol 2, of the Law Reports series called Appeals Cases, beginning at page To cite a particular paragraph from the judgment, add the paragraph number in square brackets at the end of the citation:. In some situations, it might be preferable to cite a specialist series, e.
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For cases before , cite the best report. If referring to a particular page of the judgment, give that page number after the page number on which the report begins. The following citation refers to page of the Donoghue v Stevenson judgment:. The standard case citation format in England and Wales is:. In England and Wales as with certain Commonwealth countries, the abbreviation "R" for rex king or regina queen , is used for cases in which the state is a party typically criminal cases or judicial review cases. Square brackets "[ ]" are used when the year is essential to locating the report e.
Round brackets " " are used when the year is not essential but is useful for information purposes, e. The term "reporter", meaning a law report or a series of them, is not widely used in England and Wales.
Burden of proof (law)
Before , English courts used a large number of privately printed reports, and cases were cited based on which report they appeared in. This system was also used in the United States and other common law jurisdictions during that period. Two main unofficial law reports report all areas of law: In addition, a number of unofficial specialist law reports focus on particular areas, e. These have been published since These four series are cited in preference to all others in court.
The table below is an incomplete list of law reports other than "The Law Reports", nominate reports and reprints. For nominate reports, see Nominate reports. The standard case citation formats in Scotland are:. The Supreme Court has issued a practice note on the use of neutral citation. Case citations are used to find a particular case, both when looking up a case in a printed reporter and when accessing it via the Internet or services such as LexisNexis or Westlaw.
This format also allows different cases with the same parties to be easily differentiated. For example, looking for the U. Supreme Court case of Miller v. California would yield four cases, some involving different people named Miller, and each involving different issues. A citation to the United States Reports looks like this:. Many court decisions are published in more than one reporter.
A citation to two or more reporters for a given court decision is called a "parallel citation". Supreme Court decisions, there are several unofficial reporters, including the Supreme Court Reporter abbreviated S. Although a citation to the latter two is not required, some attorneys and legal writers prefer to cite all three case reporters at once:. The "2d" after the L. United States case reporters are sequentially numbered, but the volume number is never higher than When the 1,th volume is reached the threshold in earlier years was lower , the volume number is reset to 1 and a "2d" is appended after the reporter's abbreviation.
Some case reporters are in their third series, and a few are approaching their fourth. Some very old Supreme Court cases have odd-looking citations, such as Marbury v. Madison , 5 U. The " 1 Cranch " refers to the fact that, before there was a reporter series known as the United States Reports compiled by the Supreme Court's Reporter of Decisions , cases were gathered, bound together, and sold privately by the Court's Reporter of Decisions. In this example, Marbury was first reported in an edition by William Cranch , who was responsible for publishing Supreme Court reports from to Such reports, named for the individual who gathered them and hence called " nominative reports ", existed from to Beginning in , the U.
In this way, "5 U. The name of the reporter of decisions has not been used in citations since the U. When a case has been decided, but not yet published in the case reporter, the citation may note the volume but leave blank the page of the case reporter until it is determined. For example, Golan v.