Editing Common law (section)

== Basic principles of common law ==

=== Common law adjudication ===

In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation.<ref>Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007) [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012220] [https://lawdigitalcommons.bc.edu/lsfp/207]</ref> First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.<ref>''e.g.'', ''Ex parte Holt'', 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office)</ref> Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.

In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular [[jurisdiction]], and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by [[appellate courts]] are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, [[constitutional law]], [[statutory law]] and [[Regulation (law)|regulatory law]] also give rise to considerable complexity.

=== Common law evolves to meet changing social needs and improved understanding {{anchor|CL_Common_Law_Evolves}} ===
{{Original research section|date=February 2024}}
[[Oliver Wendell Holmes Jr.]] cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".<ref>Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).</ref> [[Benjamin Cardozo|Justice Cardozo]] noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".<ref>Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).</ref>

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and [[social philosophy]]. Second, the common law evolves through a series of [[incrementalism|gradual steps]], that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.<ref>The beneficial qualities of the common law's incrementalist evolution was most eloquently expressed by the future [[Lord Mansfield]], then Solicitor General Murray, in the case of ''Omychund v. Barker'', who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an [[Act of Parliament|act of parliament]]". I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)</ref> In contrast to common law incrementalism, the legislative process is very difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.<ref>{{Cite web |title=The Legislative Process |url=https://www.geron.org/Advocacy/How-to-Advocate-for-Aging-Issues/The-Legislative-Process |access-date=2024-06-12 |website=www.geron.org}}</ref>

One example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence. The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were parties to a contract ([[privity of contract]]). Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, ''[[Winterbottom v Wright]]'',<ref>''Winterbottom v. Wright'', 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842)</ref> the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. 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 1852, in the case of ''[[Thomas v. Winchester]]'',<ref>[http://www.courts.state.ny.us/reporter/archives/thomas_winchester.htm ''Thomas v. Winchester''], 6 N.Y. 397 (N.Y. 1852)</ref> 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 1909, New York held in ''Statler v. Ray Mfg. Co.''<ref>''Statler v. Ray Mfg. Co.'', 195 N.Y. 478, 480 (N.Y. 1909)</ref> that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed".

Yet the privity rule survived. In ''Cadillac Motor Car Co. v. Johnson''<ref>''Cadillac Motor Car Co. v. Johnson'', 221 F. 801 (2nd Cir. 1915)</ref> (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and 'dozy' wood, quite insufficient for its purposes". The ''Cadillac'' court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor". However, held the ''Cadillac'' court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud".<ref>{{Cite web |title=Johnson v. Cadillac Motor Car Co. |url=https://case-law.vlex.com/vid/johnson-v-cadillac-motor-895212692 |access-date=2024-09-03 |website=vLex |language=en}}</ref>

Finally, in the famous case of ''[[MacPherson v. Buick Motor Co.]]'',<ref>[http://www.courts.state.ny.us/reporter/archives/macpherson_buick.htm ''MacPherson v. Buick Motor Co.''], 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)</ref> in 1916, [[Benjamin Cardozo|Judge Benjamin Cardozo]] for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to ''Cadillac'' a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:

{{Blockquote|It may be that ''Statler v. Ray Mfg. Co.'' have extended the rule of ''Thomas v. Winchester''. 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. Ray Mfg. Co.'', supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (''Torgesen v. Schultz'', 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In ''Burke v. Ireland'' (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in ''Kahner v. Otis Elevator Co.'' (96 App. Div. 169) to the manufacturer of an elevator; in ''Davies v. Pelham Hod Elevating Co.'' (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. 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 v. Wright|Winterbottom]]'', that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that ''some'' boundary is necessary, ''[[MacPherson v. Buick Motor Co.|MacPherson]]'' overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. 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: (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years.<ref name="SpeiserLawOfTorts" /> (b) The [[ratio decidendi|reasons given for a decision]] are often more important in the long run than the outcome in a particular case. 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.

=== Publication of decisions ===

In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as yearbooks and [[law report]]s.<ref name="Civil Law" />

After the [[American Revolution]] in 1776, 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.<ref name="BostonSocialLawCommonOrCivil">Social Law Library, ''Common Law or Civil Code?'', Boston, Massachusetts.</ref> The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function [[United States Reports#history|in 1874]]. [[West (publisher)|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, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.
=== Comparison with statutory law ===

Statutes are generally understood to supersede common law. They may [[Codification (law)|codify]] existing common law, create new [[causes of action]] that did not exist in the common law,{{efn|''Hadley v Baxendale'' (1854) 9 Exch 341 (defining a new rule of contract law with no basis in statute);  ''MacPherson v. Buick Motor Co.'', 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) (adjudicating the tort of negligence that existed in no statute, and expanding the law to cover parties that had never been addressed by statute)}} or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are [[contract law]]<ref>E. Allen Farnsworth, Farnsworth on Contracts, §&nbsp;1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions [remain] the dominant primary source of contract law.")</ref> and the [[law of torts]].<ref name="SpeiserLawOfTorts">Stuart Speiser, et al., The American Law of Torts, §§&nbsp;1:2, 1:5, and 1:6, Thomson Reuters (2013) (describing common law development of tort law in England and the United States, and the "little reluctance [of courts] to overrule (or disapprove statements in) decisions in tort law either now deemed wrong or inadvisedly considered" and disinclination toward any contention that change must be by legislation).</ref> 

===="Legislating from the bench"====

At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what [[Roscoe Pound]] described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of [[statutory interpretation]].<ref name=popkin/><ref name=interpretation>{{cite journal |last1=Pound |first1=Roscoe |title=Spurious Interpretation |journal=Columbia Law Review |date=1907 |volume=7 |issue=6 |pages=381 |doi=10.2307/1109940 |jstor=1109940 |quote=The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed&nbsp;... the object of spurious interpretation is to make, unmake, or remake, and not merely to discover&nbsp;... it is essentially a legislative, not a judicial process, made necessary in formative periods by the paucity of principles, feebleness of legislation and rigidity of rules characteristic of archaic law. So long as law is regarded as sacred, or for any reason as incapable of alteration, such a process is necessary for growth, but surviving into periods of legislation, it becomes a source of confusion.}}</ref>

[[Jeremy Bentham]] famously criticized judicial lawmaking when he argued in favor of codification and narrow judicial decisions. Pound comments that critics of judicial lawmaking are not always consistent – sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law.<ref>{{cite journal |last1=Pound |first1=Roscoe |title=What of Stare Decisis? |journal=Fordham Law Review |date=1941 |volume=10 |issue=1}}</ref> [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] once dissented: "judges do and must legislate".<ref>''Southern Pacific Co. v. Jensen'', 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).</ref>

====Statutory construction====

There is a controversial legal maxim in American law that "[[Derogation#Common law|Statutes in derogation of the common law ought to be narrowly construed]]". [[Henry Campbell Black]] once wrote that the canon "no longer has any foundation in reason". It is generally associated with the [[Lochner era]].<ref>{{cite book |last1=Popkin |first1=William |title=Statutes in Court: The History and Theory of Statutory Interpretation |date=1999 |publisher=Duke University Press |page=97}}</ref>

The presumption is that legislatures may take away common law rights, but modern jurisprudence will look for the statutory purpose or legislative intent and apply rules of statutory construction like the [[plain meaning rule]] to reach decisions.<ref name=popkin/> As the United States Supreme Court explained in ''United States v Texas'', 507 U.S. 529 (1993):{{primary inline|date=February 2024}}

{{blockquote |text=Just as longstanding is the principle that "[s]tatutes which invade the common 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. ''Isbrandtsen Co. v. Johnson'', 343 U.S. 779, 783 (1952); ''Astoria Federal Savings & Loan Assn. v. Solimino'', 501 U.S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. ''Astoria'', 501 U.S. at 108. In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. ''Mobil Oil Corp. v. Higginbotham'', 436 U. S. 618, 625 (1978); ''Milwaukee v. Illinois'', 451 U. S. 304, 315 (1981).}}

As another example, the [[Supreme Court of the United States]] in 1877,<ref>''Meister v. Moore'', 96 U.S. 76 (1877) ("No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.")</ref> 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.

Court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies are sometimes called "interstitial common law", which includes judicial interpretation of fundamental laws, such as the [[US Constitution]], of legislative statutes, and of [[Regulation (law)|agency regulations]], and the application of law to specific facts.<ref>{{Cite web |title=Common Law |work=Atlas of Public Management |url=https://www.atlas101.ca/pm/concepts/common-law/ |access-date=2024-02-02 |language=en-US}}</ref>

=== Overruling precedent—the limits of ''stare decisis'' ===
The [[#United States federal system (1789 and 1938)|United States federal courts]] are divided into twelve regional circuits, each with a [[United States courts of appeals|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.

Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting ''en banc'' (that is, all active judges of the court) or by a higher court.<ref>E.g., ''South Corp. v. United States'', 690 F.2d 1368 (Fed. Cir. 1982) (''en banc'' in relevant part) (explaining order of precedent binding on the United States Court of Appeals for the Federal Circuit); ''Bonner v. City of Prichard, Alabama'', 661 F.2d 1206 (11th Cir. 1981) (''en banc'') (after the Eleventh Circuit was split off from the Fifth Circuit, adopting precedent of Fifth Circuit as binding until overruled by the Eleventh Circuit ''en banc'': "The [pre-split] Fifth followed the absolute rule that a prior decision of the circuit (panel or ''en banc'') could not be overruled by a panel but only by the court sitting ''en banc''. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule."); ''Ex parte Holt'', 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office).</ref> In these courts, the older decision remains controlling when an issue comes up the third time.

Other courts, for example, the [[Court of Appeals for the Federal Circuit]] (formerly known as Court of Customs and Patent Appeals) and the [[SCOTUS|US 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. 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 2009, 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, where the [[High Court of Justiciary]] has this power instead (except on questions of law relating to reserved matters such as devolution and human rights). From 1966 to 2009, this power lay with the [[Judicial functions of the House of Lords|House of Lords]], as it declared in the [[Practice Statement]] of 1966.<ref>83 Cr App R 191, 73 Cr App R 266</ref>

Canada's federal system, described [[#CL Canada federal|below]], avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.

=== Common law as a foundation for commercial economies ===
{{Further|Intracorporate Conspiracy Doctrine}}
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.<ref name="LawGovPol">{{cite web| url = https://lawgovpol.com/common-law-advantages-disadvantages| title = LawGovPol, ''Common law: advantages and disadvantages''| access-date = 28 January 2021| archive-date = 21 July 2024| archive-url = https://web.archive.org/web/20240721194550/https://lawgovpol.com/common-law-advantages-disadvantages| url-status = dead}}</ref> 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."<ref>''Burnet v. Coronado Oil & Gas Co.'', 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).</ref> This ability to predict gives more freedom to come close to the boundaries of the law.<ref>See, e.g., [[Yeo Tiong Min]], "[http://www.singaporelaw.sg/content/SomeDifferences.html A Note on Some Differences in English Law, New York Law, and Singapore Law] {{Webarchive|url=https://web.archive.org/web/20070502093747/http://www.singaporelaw.sg/content/SomeDifferences.html |date=2007-05-02 }}" (2006).</ref> For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their [[Freedom of speech|freedom of expression]] rights apply.

In contrast, in jurisdictions with very weak respect for precedent,<ref>For example, the [[United States Patent and Trademark Office|U.S. Patent Office]] issues very few of its decisions in precedential form. Kate Gaudry & Thomas Franklin, "Only one in 20,631 ''ex parte'' appeals designated precedential by PTAB", IPWatchdog (27 September 2015). Various lower tribunals in the Patent Office give very weak respect to earlier superior decisions.</ref> fine [[Question of law|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.<ref name=LawGovPol /> 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 why<ref name="EisenbergMillerNewYork" /> the law of the State of New York is frequently chosen 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.<ref name="EisenbergMillerNewYork">Theodore Eisenberg & Geoffrey P. Miller (2008). [http://lsr.nellco.org/nyu_lewp/124 ''The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in {{Sic|hide=y|Publicly|-}}Held Companies' Contracts'']. New York University Law and Economics Working Papers. Paper 124, {{Webarchive|url=https://web.archive.org/web/20110401145941/http://lsr.nellco.org/nyu_lewp/124/ |date=1 April 2011 }} (based on a survey of 2882 contracts, "New York law plays a role for major corporate contracts similar to the role Delaware law plays in the limited setting of corporate governance disputes. ... New York's dominance is striking. It is the choice of law in approximately 46 percent of contracts", and if merger contracts excluded, over half).</ref> Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. 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 [[Corporations law|corporate law]], and American contracts relating to corporate law issues ([[Mergers and acquisitions|merger and acquisitions]] of companies, rights of shareholders, and so on) include a Delaware [[choice of law]] clause, because of the deep body of law in Delaware on these issues.<ref>Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract—[merger] trust agreements. ... The dominance of Delaware for this specialized type of contract is apparently due to the advantages and flexibility which Delaware's business trust statute.")</ref> On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law.<ref>Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.</ref> Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth. 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 law|admiralty]] cases.<ref>{{cite news| url=https://www.independent.co.uk/news/uk/home-news/london-becomes-litigation-capital-of-the-world-1031231.html | location=London | work=The Independent | first=Richard | last=Osley | title=London becomes litigation capital of the world | date=23 November 2008}} London is also forum for many defamation cases, because UK law is more plaintiff-friendly—in the United States, the First Amendment protection for freedom of the press allows for statements concerning public figures of questionable veracity, where in the UK, those same statements support a judgment for libel. This relative weakness of protection for freedom of speech led the United States to limit enforcement of foreign (in particular, English) defamation judgements in the [[SPEECH Act]] of 2010, thus making England and Wales a less attractive forum for such cases.</ref>

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.