Have any recent US court decisions cited English common law?

Question

As I understand it, the common law system in the United States inherited the body of caselaw developed by English courts up until the US declared independence, at which point we started developing our own additions to common law. So, for example, Scrope v. Grosvenor (1389) should still be binding law in the US, in the vanishingly unlikely event that it should ever come up in a court case, unless it has been overridden by subsequent judgments. I'm curious to know if there are any US court cases within the past few decades that have cited pre-1776 English common law as binding precedent.

Answer 1

Infamously, the Supreme Court majority in Dobbs v. Jackson Women's Health Organization, No. 19-1392 (2022) cited English law from as long ago as the 13th century in order to inform their analysis of abortion. While this opinion has been widely criticized, it still represents a prominent recent use of pre-independence English common law. A quoted statement from Henry de Bracton's De Legibus et Consuetudinibus Angliae, probably written in the 1230s, must surely count as the oldest piece of common law heritage to be used by the Supreme Court in recent years:

[If one has] struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide. (trans. T. Twiss, 1879, as cited in the case)

Si sit aliquis qui mulierem prægnantem percusserit vel ei venenum dederit, per quod fecerit abortivum, si puerperium iam formatum vel animatum fuerit, et maxime si animatum, facit homicidium. (Original Latin text, from the edition by G. E. Woodbine, 1923)

Justice Alito's opinion also cites case law, such as R v. Webb (Q.B. 1602). He did not consider himself to be bound by such cases, or by Bracton, but he did use them as part of an argument that there was no historical common-law right to an abortion. If there were one, then it would be potentially capable of Constitutional protection and any U.S. domestic law would have to give way. But the historical common law, on its own, could not override a federal or state statute in that manner: it is just being studied in order to understand the scope of what the Constitution requires.

Less controversially, certain English cases relating to civil liberties continue to be cited in recent U.S. decisions, although again not as "binding precedent". They are used to help illuminate the historical context behind provisions of the U.S. Constitution - which is the supreme law of the United States - rather than because they themselves are authoritative in that way.

For example, in the case of United States v. Jones, 565 U.S. 400 (2012), the Supreme Court had to consider whether installation of a GPS tracker on Jones's car was done in violation of the Fourth Amendment. That provision of the Constitution, enacted long before the invention of GPS or cars, says

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The majority opinion by Justice Scalia begins by calling back to a famous English case of 1765, known to have been influential for the drafting of this amendment:

We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886) ). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.

Note that Justice Scalia is careful about his language here. He is not treating Lord Camden's opinion in Entick as binding precedent, to be applied to the facts in the Jones case. What he is doing is affirming a line of Supreme Court authority, in particular the 1886 case of Boyd in which Justice Bradley used pre-Revolution cases from England to characterize the Fourth Amendment's relation to personal property. It is the Fourth Amendment which provides the standard by which the police's conduct could be judged. The English case is important for understanding what the Amendment really means, but is cited here mainly for rhetorical effect.

In the same way, lower courts in the U.S. are not bound by Entick directly, but they are bound by the Supreme Court's analysis of the Fourth Amendment in its various cases. That analysis is informed by Entick and so other courts may also consider it to be persuasive or useful, although they would very rarely have to reach back to "first principles" rather than more recent applicable precedent.

Similar cases on search and seizure can be decided without reference to English authority. For example, the majority opinion in Carpenter v. United States, 138 S. Ct. 2206 (2018) contains a few passing references to the general history and scope of the Fourth Amendment, including a citation of Boyd, but doesn't delve into any deep exegesis using historical English law. Some of the dissenting opinions do - between Justices Thomas, Alito and Gorsuch, we see citations of Entick, of cases of comparable vintage such as Wilkes v. Wood 19 How. St. Tr. 1153 (K. B. 1763), and of learned treatises by Locke, Blackstone, and Coke.

Answer 2

There are many, but they mostly date from the 18th and 19th centuries

Each of the states except Louisiana (a civil law jurisdiction) passed statutes "receiving" English common law to the extent that it is not repugnant to domestic law or indigenous conditions, or expressly forbidden (like bills of attainder).

In the early post-revolution period, English case law was commonly cited because:

1. Local appeals courts had not yet made many decisions, and
2. English cases were more widely reported and therefore more available even on the western side of the Atlantic.

This became less and less common as American precendents were set and more widely distributed.

Today, in the words of Stanford law professor Lawrence M. Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention."

When they do, they are usually citing principles that are so basic that they could go without saying.