Questions tagged [common-law]
For questions regarding English common law, or legal systems based on judge-made law descended from it.
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Is reasonable doubt that of >=9.1% probability? [duplicate]
The criminal burden of proof (ie beyondA reasonable doubt) is famously attributed to “Blackstone’s Ratio”:
It is better that ten guilty persons escape than that one innocent suffer.
I’m not sure if ...
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Is drunk driving a malum prohibitum or malum in se?
In common-law jurisdictions where driving a motor vehicle under the influence of alcohol is illegal (presumably all of them?), is drunk driving considered malum prohibitum or malum in se?
I am aware ...
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What is the principle of “finders keepers until the owner claims” called?
Another answer states that:
The common law position is that the finder of a chattel acquires a title that is good against the entire world except for the true owner.
Is there a term for this ...
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Does the English or the American rule prevail in Canada?
In English rule jurisdictions, the general principle is that loser of a case pays the costs on an indemnity basis. In American rule ones, the norm is that each side bears their own costs. Which ...
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How did international/colonial jurisdictions deal with the combination of law and equity?
It seems to me based on preliminary consideration that as the majority of the British empire gained independence from colonial rule after WWII, the U.S. is perhaps at least somewhat unique in gaining ...
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What were practitioners of/at (?) Equity called when the courts were separate?
Back when Equity was separate from Law, were practitioners of Equity qualified to address the courts of chancery called “lawyers”? Or were they called “equiters” or some other different term?
Given ...
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Are writs rooted in equity?
Another answer I came across recently mentioned that orders for specific performance ie mandatory injunctions formerly called mandamus were writs. Conversely so were other writs such as certiorari. ...
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Why is the crown referenced differently between first instance and appellate hearings?
According to a recent answer,
“R” is only used in first instance trials, “the King” or “the Queen” are used in appeals and those are pronounced as you’d expect.
Why is this?
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How is “R v. Smith” pronounced?
Is it “Are and smith”? “Rex/Regina and smith”? “The king/queen and smith”? What is the typical convention?
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What was "carnal knowledge against the order of nature"?
S152(2), Palestine Penal Code of 1936, makes reference to carnal knowledge against the order of nature:
152(2) Any person who:— (a) has carnal knowledge of any person against the order of nature; or (...
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What is the origin of the notion of the King’s “peace”?
There are magistrates (or justices) of the peace, which evokes memory of the justices of the peace act 1285, a statute. Then there is a breach of the peace and the various police powers and ...
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Is there a requirement for US laws to follow common law?
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 ...
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Why are contracts void at common law if they are “contrary to public policy”?
What does it mean for a contract or contractual term to be “contrary to public policy”? By what principle are such contracts void at common law?
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Why are jurors still asked to apply the law if their primary role is to find facts?
Why do juries get asked whether the defendant is guilty or not instead of simply whether certain alleged facts took place?
Say Rob is being tried for the murder of Bob, but there's also a possibility ...
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Why isn’t the county court binding upon itself?
Numerous sources state that the starting point for all common law systems is the cornerstone principle of stare decisis, ie that courts are in similar fact patterns bound to follow previous decisions ...
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Are non-recorded court decisions still binding?
It seems that back in the day one relied on law reporters’ reports to be able to study and cite precedential decisions in future cases. A decision being featured in an edition of a law report enables ...
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Would using a parasite be Assault with a Deadly Weapon?
What crime would be committed if an Offender inserted a parasite into a victim's ear? This would be involuntary and for malicious purposes. The outcome could range from short-term discomfort to severe ...
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Can courts be expected to proactively research and have regard to relevant case precedents?
It seems that often statutes are binding on courts even if neither party is aware of our calls the court’s attention to them. They will proactively introduce the relevant provisions into the equation ...
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Does the doctrine of timely retraction extend to non immigration false claims to citizenship?
There are statutes in the Immigration Nationality Act that punish willful material misrepresentations/fraud and false claims to citizenship in connection with any benefit under the law (See https://...
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Has there ever been a common-law-only jurisdiction?
Is there, or has there ever been, any jurisdiction governed only under common law, with no statutory law?
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Is it true that common law courts will not resolve a question without a controversy?
Is it true that common law courts will not resolve a question without a controversy and will not give governments pre-emptive advice on the legality of laws or regulations?
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Can precedents established in Native American law be used as a foundation in US law precedent?
As I understand it, interpretation of laws in the US is largely based on precedents established not only in US law but also going back to cases in England prior to US independence. This is because the ...
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property damage - redress/ options to victims - specifically commercial victims
one thing I've sometimes heard (especially related to items on show in shops is "you break it, you buy it" with the idea being that if someone were to accidentally damage an item intended ...
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Which legal system has more specific and generic laws? [closed]
With respect to the Common Law System and the Civil Legal System, which of these have more specific laws and which are more generic?
This question could also cover any other law systems in regards to ...
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Is common law required in the federal system in the US?
The US constitution doesn't prescribe that any state use common law. Louisianan law is based on the Napoleonic laws.
But is the federal government supposed to use it?
Imagine that for some reason, ...
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Which law rules polygraphs inadmissible in UK?
Where does it say that polygraph tests (lie detector tests) are inadmissible under law in England and Wales?
I am mostly interested in their usage being disallowed for criminal (both Magistrates' ...
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If for some reason the Canadian Parliament had the idea to impeach and convict someone, what would be the legal implications of that?
I am 100% aware of what a no confidence motion is. This is emphatically not what I am referring to.
Impeachment is an unambiguous right of the Parliament of the United Kingdom to have, having been ...
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Is this is an appropriate way of distinguishing cases?
I was researching how lawyers, courts distinguish cases and I came across this article: https://plato.stanford.edu/entries/legal-reas-prec/index.html#PreLayDowRul. It says that cases can be ...
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What is an “estate,” as in a “housing estate” or “council estate”? [closed]
Also, how does this sense of the word differ from those used in other jurisdictions, and how are any of the senses of the term derived from one another if at all?
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Why are formal accusations of crimes called “charges”?
How and when did it come to be called this? What are the origins of the term “criminal charges”?
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Can a previously binding precedent be overturned based on its rationale being outdated?
Al loses a case at first instance and appeals to some very high court if not all the way to last resort. The ultimate decision is made based on some rationale that appeals to common sense or general ...
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Is there a term for set/prescribed measures of damages?
A recent answer answers the question with another question, that of what damage the plaintiff has actually suffered. Yet certain statutory/case regimes have guidelines for compensation that are blind ...
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Could any British statutes have remained in force as U.S. federal law after the American Revolution?
The question Are any British or English Acts of Parliament still in force in the United States? asked
Are there any Acts of the British (or English Parliament) in force before American independence ...
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Severance pay when getting terminated just after major change in scheduling
Normally the amount of severance pay is calculated based on the most recent past several weeks (8 in this example). What if there is an upcoming major change to the employees schedule right around the ...
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Terminating an independent contractor
If an independent contractor works for a company who assigns him shifts, can the company cancel the assigned shifts without warning or reason and effectively terminate the relationship? Assume there ...
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What range of applications does the concept of “master of an offer” have?
Is it an ad hoc creation for or rationalisation of the situation with private lot parking tickets, or does it have any broader applications /currency as a proper abstraction?
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Have any recent US court decisions cited English common law?
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 ...
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Does any state force recognition of common law marriage on couples if they do not want it?
I will use Texas as an example, but I'd be interested in any others...
Per this link, a couple is considered married under common law in Texas if they:
1.) Agree to be married, 2.) Live together as a ...
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What makes a price tagged item on a shelf an invitation to treat, rather than an offer of sale?
Contrast the counter intuitive treatment in law of a store displaying stock on its shelves, with the much more common sensical treatment of a poster for an auction.
In an auction the stock may be ...
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What are some new examples of judge made law?
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 ...
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Perverting the Course of Justice - Does deception fit this crime? [closed]
My question: Does Perverting the Course of Justice 'apply' to those who try and garner 'evidence' using somewhat deceptive means, even if the evidence they intend to gain is accurate and lawful?
...
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What crime am I comitting hot wiring a unprotected vehicle on a public area
Consider the following: On a construction site on a public road without any sort of barrier a very old dumper is sitting. It has absolutely no protection like requring an rfid chip from the key to be ...
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Is it ever possible to "sell" the right to action a tort?
Suppose Bob discriminates against Alice on a date 1/1/2023. Alice has a right to sue Bob for this discrimination for some limited period, but she doesn't care to bother with the hassle of pursuing ...
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common law vs civil law differences
I am trying to get a better understanding of differences between common law and civil law legal systems. Here is what I was able to find online:
in common law there is the idea of a precedent, while ...
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Does contract formation require subjective "meeting of the minds"?
For a contract to be formed, it is said there must be a "meeting of the minds." Does this mean that the fact-finder attempts to ascertain the actual subjective intentions and understanding ...
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Minimum penalty for extradition makes no sense?
I have been looking into extradition law, focusing on the United Kingdom (England and Wales jurisdiction) wanting to extradite an individual back from a country abroad.
There are many factors to ...
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Why does the high court of chivalry follow “civil law,” and what does this mean?
The English so called high court of chivalry, archaic and now rarely used, is said by Wikipedia to follow civil law (ie not common law).
How does this work, and how did it come to be?
https://en.m....
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What makes a car not a “negotiable” chattel?
Another answer contrasts negotiable instruments like currency with the example of a car where a thief of the car doesn’t “own” the car and cannot transfer ownership. What is it about a car that makes ...
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What is denoted by “operation of law”?
I had only previously encountered the phrase as in “surrender by operation of law” until just now I read the latter portion of the phrase used independently by user @ohwilleke in another answer. What ...
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What are the correct parameters of usage for addressing parties as one’s “learned friend”?
Does a solicitor with right of audience address their opposing barrister as their learned friend? Do they get addressed as the barrister’s learned friend?
What of a litigant in person?
And in all ...
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