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What are some recent examples of judge made law? (On both the criminal and civil side.)

I am not looking for interpretations in long standing common law. I am looking for development of a new principle, prohibition, theory of liability, ect. invented by a judge on the basis of reason, equity, analogy ect (perhaps to meet a new circumstance or development). Am am also not looking for new interpretaions of statutes, but purely for judge made law.

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  • I don't know if my question is poorly worded. You can feel free to improve on it Commented Apr 18, 2023 at 1:44
  • Realevent law.stackexchange.com/questions/66927/… top answer 4th paragraph: "Since then the incidence of judge made law has greatly declined in the UK, and has declined even more in the US. I think that it is fair to say that Judges in the US do not now make new law with any frequency." Commented Apr 18, 2023 at 1:49
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    Does Roe vs Wade count as "recent"?
    – nick012000
    Commented Apr 18, 2023 at 2:27
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    It was overturned I think. I guess it is statutary law since it interprets the Bill of Rights and US Constitution. (Does it also rely on extra-constitutional common law rights to privacy/ autonomy?) Commented Apr 18, 2023 at 2:33
  • Would the downvoters consider explaining their vote by providing constructive criticism Commented Apr 18, 2023 at 17:44

4 Answers 4

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I am using 1960s and later as a cutoff for "new" in the absence of other clear guidance in the question (keep in mind that the common law goes back to before the 1600s in many cases). I'm also treating a judge made law innovation as "new" even if it was present in a handful of outlier cases in a handful of jurisdictions but was not widely used and widely adopted until much later.

A few that come to mind are:

  • The direct strict liability for defective products in torts originated in California in the 1960s.

  • The market share method of allocating damages for product liability in class action lawsuits when the exact manufacturer could not easily be determined because multiple manufacturers made the same defective product is a fairly recent innovation.

  • The widespread adoption of the common law implied duty of good faith and fair dealing in cases not governed by the Uniform Commercial Code is more recent than that.

  • The common law practice of treating installment land contracts upon which many payments have been made as mortgages under a lien theory is relatively recent.

  • The generalized and widespread adoption of unjust enrichment as a cause of action is a late 20th century judicial innovation.

  • The concept of a trust protector for express trusts is relatively recent (maybe seeing widespread adoption in the 1980s).

  • The outrageous conduct/intentional infliction of emotional distress tort is relatively recent (probably seeing wide use around the 1970s or 1980s).

  • The negligent misrepresentation tort is relatively recent.

  • the injurious falsehood tort (imposing fraud liability when fraud directed at a third-party harms the person seeking relief)

  • The intentional interference with contractual rights/business opportunity tort is relatively recent, at least in wide application.

  • Palimony causes of action.

  • Enforcement of domestic partnership agreements (previously disallowed as a matter of public policy).

  • The use of the contempt of court power to enforce unpaid child support and alimony judgments.

  • The erosion (but not complete abolition) of common law authority for someone to make decision for spouses and children as a "natural guardian" in the absence of a court order or written instrument.

  • The demise of college and university in loco parentis authority over college students.

  • The demise of the common law defense to assault for a husband's "reasonable" discipline of his wife.

  • The demise of marital tort immunities in many states (in other states this was statutory).

  • The demise of the heart balm torts in states where they were not abolished by statute.

  • The common law choice of law rules were revolutionized between roughly the 1960s and 1980s with the "most significant relationship" test largely replacing rigid black and white rules.

  • The tender year's doctrine was a common law innovation that came and went (in the face of constitutional gender equality norms that overruled it). It has been somewhat superseded by a weak primary caretaker presumption and by the concept that the best interests of the child are served by reproducing the pre-divorce/separation status quo to the extent possible.

  • Validating shrink wrap licensing and the theories of contract formation that go with website terms of service are fairly recent common law innovations.

  • Various common law legal theories of relief for revenge porn are quite recent. This is a currently developing area of the common law.

Some innovations that started with common law decisions were later widely codified:

  • Putative marriage was a common law innovation before it was codified.

  • Time shares were a common law innovation before they were regulated on a statutory basis.

  • The concept of quasi-community property was a fairly recent innovation that was a common law concept before it was statutory.

  • The concept of derivatives is largely a common law innovation.

  • The common law reporter's privilege, in places where it does not arise from a shield law, dates mostly from the 1970s.

  • Implied warranties of habitability for residential real estate were originally a common law innovation although they have been codified in many jurisdictions now.

  • Limitations on the duration, allowability, and scope of non-competition agreements (some of which remains common law and some of which is now statutory).

It is somewhat hard to stick to the question's limitation on "not looking for new interpretations of statutes, but purely for judge made law" because lots of constitutional law and civil procedure, for example, have a very thin statute-like touchstone but have predominantly been a matter of judicial innovation. These include:

  • The demise of notice pleading in the federal courts after decades without significant case law change and no new statutory language.

  • The dramatic narrowing of "general jurisdiction" after decades without significant case law change and no new statutory language.

  • The creation of the "qualified immunity" doctrine in civil rights cases.

  • The creation and then limitations of the Bivens remedy for civil rights violations by federal officials no spurred by new statutory language.

  • The "fraud on the market" theory of securities fraud liability.

  • The concept of insider trading.

  • The definition of "security" in the case of investment contracts.

  • The narrowing of defamation law in multiple respects.

  • The Miranda rule.

  • Case law regarding reasonable expectations of privacy under the 4th Amendment in light of new technologies (infrared, drones, DNA testing, etc.)

  • The "major questions doctrine" for judicial review of administrative action on constitutional grounds.

  • The development of sexual harassment claims from statutes prohibiting discrimination on the basis of sex.

  • The application of existing statutes and constitutional provisions to LGBT rights with no new statutory language.

  • The determination that juvenile life without parole violates the 8th Amendment.

  • The determination that the Second Amendment creates an individual right and that this right is applicable against state and local governments and not just the federal government.

  • The determination that the 6th Amendment allows for non-unanimous criminal case juries followed by a determination decades later that it does not allow for non-unanimous criminal case juries based upon the experience of Louisiana and Oregon that used those options.

  • The jurisdictional issues of when a state can impose sales taxes on mail order purchases (which involved a double flip of authority at the U.S. Supreme Court level).

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    Another good example to put up is the history of case law surrounding the Sherman Antitrust act. The effective part of the law is only two paragraphs of the length of a single sentence each. The amount of case law it generated could fill books.
    – hszmv
    Commented Apr 18, 2023 at 12:03
  • Great answer. Very compendius list Commented Apr 18, 2023 at 18:03
  • I hope its ok to move some of your examples to the comments so the answer focuses on New judge made law, not the discontinuance of Old principles. Hopefully this makes the answer less cumbersome Commented Apr 18, 2023 at 18:05
  • - The erosion (but not complete abolition) of common law authority for someone to make decision for spouses and children as a "natural guardian" in the absence of a court order or written instrument. - The demise of college and university in loco parentis authority over college students. - The demise of the common law defense to assault for a husband's "reasonable" discipline of his wife. - The demise of marital tort immunities in many states (in other states this was statutory). - The demise of the heart balm torts in states where they were not abolished by statute. Commented Apr 18, 2023 at 18:06
  • @NaftaliTzvi Discontinuing old principles and adopting new principles are precisely the same thing.
    – ohwilleke
    Commented Apr 18, 2023 at 21:02
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See Air & Liquid Systems Corp. v. DeVries 586 U.S. ___ (2019). This was a maritime law tort case, where the Court explicitly acknowledged that "[i]n maritime tort cases, we act as a common-law court."

The Court recognized a new duty to warn for a manufacturer where:

(i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.

In this case, the manufacturer's product required integration with an asbestos product.

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The tort of Invasion of Privacy

Only … not quite yet. This is an area of law which is currently developing with two District Court judgements in Victoria and Queensland stating that the tort exists but, since both settled before appeal, we have no appellate court decisions. The High Court has said in obiter that it is not closed to the idea that such a tort might exist but it hasn’t yet been of material interest in any case they have addressed.

Aiden Lerch, ‘The Judicial Law-Making Function and a Tort of Invasion of Personal Privacy’ (2021) 43(2) Sydney Law Review 133.

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  • On the cutting edge! Commented Apr 18, 2023 at 17:25
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In patent law there are two kinds of doctrines called “double patenting”. One is a statutory prohibition (that originates in the word “a” in the constitution) on two patents covering the same invention, the other is actually called “judicially created double patenting”. It limits patents in the case where one is obvious from the other. In that situation you can get two patents as long as it isn’t possible that the term is extended beyond what it would be for a single patent or result in an alleged infringer potentially needing to fight two different owners.

It was created by Judge Rich in In re Zickendraht, 319 F.2d 225 (C.C.P.A. 1963) and solidified by other cases shortly thereafter.

More recently there have been a string of SCOTUS cases that have drastically expanded the meaning of “abstract” in in patent law, although Justice Thomas wrote that there was no reason to belabor over defining it.

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  • What's intersting about this case is that the doctrine, as you explain it, doesn't have a statutary basis. It is judge-made. But it limits and defines the availalability of patent- a statute created priviledge. (Established in the US Constitution) . Commented Apr 18, 2023 at 17:51

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