This is a plain question. Is there any requirement for US laws to align with common law?

Common Law doctrine in the US courts seems to be a fallback if no existing laws / cases cover an area of dispute. As far as I've seen, it's something that only exists for the judicial system, as the executive and legislative branches rarely concern themselves with this.

So let's give a scenario. A law is passed federally in the United States making it illegal to evict / trespass anyone (except soliders) from your property. Such a law isn't on its face unconstitutional (and if you think it is, say that it is not). This law however does go against much of common law, as one of the bases of common law is the right to exclude others from your property.

Would the courts have any justification in striking down such a law, and if so, under what doctrine?

  • Would there be any point in only enacting new laws which do follow common law? All they would do is re-emphasize what is already the current position. I would think that part of the point of a new law would be to change the status-quo.
    – brhans
    Oct 10, 2023 at 15:54
  • @brhans not necessarily. the status quo is changed both by new laws, and by other advancements in society (namely technological advancements). Common law has no roots in anything electronic, or really most technology we use every day.
    – tuskiomi
    Oct 10, 2023 at 15:58

1 Answer 1


Statute can abrogate the common law. See Hamlet of Baker Lake v. Canada (Indian Affairs and Northern Development), [1980] 1 FC 518:

Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it.

In the U.S., courts avoid reading a statute as abrogating the common law unless it is very clearly evident. See Isbrandtsen Co., Inc. v. Johnson, 343 U.S. 779 (1952)

Statutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of long established and familiar principles, except when a statutory purpose to the contrary is evident.

Although, some states direct courts to interpret their statutes liberally, even where they derogate from the common law. See Ohio, for example:

Remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice. The rule of the common law that statutes in derogation of the common law must be strictly construed has no application to remedial laws; but this section does not require a liberal construction of laws affecting personal liberty, relating to amercement, or of a penal nature.

Statute can also codify the common law. For example, the Copyright Act of 1976 codified the common law of fair use.

See also, Jefferson B. Fordham & Russell J. Leach, "Interpretation of Statutes in Derogation of the Common Law" (1950) 3 Vanderbilt Law Review 438; and Roscoe Pound, "Common Law and Legislation" (1908) 21:6 Harvard Law Review 383.

As for your specific example, I know you were trying to construct an example without constitutional implications, but at first glance, it may raise an issue under the Takings Clause of the Fifth Amendment. But, barring constitutional problems, there is nothing preventing Congress from legislating contrary to the common law.

  • Are there any such examples of cases where laws have been interpreted as infringing on common laws with a "statutory purpose"?
    – tuskiomi
    Oct 10, 2023 at 15:28
  • dang. this is a deep rabbit hole, isn't it. I didn't think that it was left up to the states to each interpret common law efficacy.
    – tuskiomi
    Oct 10, 2023 at 15:36

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