Editing Common law (section)

=== The United States – states, federal courts, and executive branch agencies (17th century on){{anchor|CL United States}} ===

====New York (17th century)====
The original colony of [[New Netherland]] was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was [[Second Anglo-Dutch War|recaptured]] by the Dutch. In 1664, the colony of [[New York (state)|New York]] had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the [[Dutch colonization of the Americas|Netherlands]] were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers.<ref>William Nelson, Legal Turmoil in a Factious Colony: New York, 1664–1776, 38 Hofstra L. Rev. 69 (2009).</ref>  When the English finally regained control of New Netherland they imposed common law upon all the colonists, including the Dutch. This was problematic, as the [[patroon]] system of land holding, based on the [[Feudalism|feudal system]] and civil law, continued to operate in the colony until it was abolished in the mid-19th century. New York began a [[Codification (law)|codification]] of its law in the 19th century. The only part of this codification process that was considered complete is known as the [[Field Code]] applying to [[civil procedure]].  The influence of [[Roman-Dutch law]] continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

==== Louisiana (1700s){{anchor|Louisiana (1700s)}} ====

Under [[Law of Louisiana|Louisiana's codified system]], the [[Louisiana Civil Code]], private law—that is, [[substantive law]] between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from [[Roman law]], transmitted through [[Law of France|French law]] and [[Law of Spain|Spanish law]], as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the [[Napoleonic Code]], as the latter was enacted in 1804, one year after the [[Louisiana Purchase]]. However, the two codes are similar in many respects due to common roots.

Louisiana's [[criminal law]] largely rests on English common law. Louisiana's [[administrative law]] is generally similar to the [[administrative Procedure Act (United States)|administrative law of the U.S. federal government]] and other U.S. states. Louisiana's [[procedural law]] is generally in line with that of other U.S. states, which in turn is generally based on the U.S. [[Federal Rules of Civil Procedure]].

Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows.<ref>{{cite web| url = https://digitalcommons.lsu.edu/cgi/viewcontent.cgi?article=1319&context=gradschool_disstheses| title = Sara Jane Sandberg, ''Women and the Law of Property Under Louisiana Civil Law, 1782–1835'' (2001)}}</ref>

==== California (1850s) ====
The [[U.S. state]] of [[California]] has a system based on common law, but it has [[Codification (law)|codified]] the law in the manner of [[civil law (legal system)|civil law]] jurisdictions. The reason for the enactment of the [[California Codes]] in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other [[Western United States|Western states]], however, have retained the concept of [[community property]] derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case ''[[Li v. Yellow Cab Co.]]'', 13 Cal.3d 804 (1975), the [[California Supreme Court]] adopted the principle of [[comparative negligence]] in the face of a [[California Civil Code]] provision codifying the traditional common-law doctrine of [[contributory negligence]].)

==== United States federal courts (1789 and 1938) ====
{{see|Federal common law}}
[[File:Uscatitle11.jpg|thumb|USCA: some annotated volumes of the [[United States Code|official compilation]] and codification of federal statutes.]]

After ''[[Erie v. Tompkins]]'', 304 U.S. 64, 78 (1938) overruled [[Joseph Storey]]'s decision in ''[[Swift v. Tyson]]'', the [[federal common law]] was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas that may not be the traditional jurisdiction of state law.<ref>''Erie R. Co. v. Tompkins'', 304 U.S. 64, 78 (1938) ("There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.").</ref>
Later courts have limited ''Erie'' slightly, to create a few situations where [[United States federal courts]] are permitted to create [[federal common law]] rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government.{{efn|''See, e.g.'', ''[[Clearfield Trust Co. v. United States]]'', {{ussc|318|363|1943}} (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case [[negotiable instrument]]s backed by the federal government); ''[[International News Service v. Associated Press]]'', 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding)}} Except on Constitutional issues, and some procedural issues, Congress is free to legislatively overrule federal courts' common law.<ref>''[[City of Boerne v. Flores]]'', 521 U.S. 507 (1997) (invalidating the [[Religious Freedom Restoration Act]], in which Congress had attempted to redefine the court's jurisdiction to decide constitutional issues); ''[[Milwaukee v. Illinois]]'', 451 U.S. 304 (1981)</ref>

In ''Swift'', the [[United States Supreme Court]] had held that federal courts hearing cases brought under their [[diversity jurisdiction]] (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. ''Erie'' overruled ''Swift v. Tyson'', and instead held that federal courts exercising diversity jurisdiction had to use all of the same [[substantive law]] as the courts of the states in which they were located. As the ''Erie'' Court put it, there is no "general federal common law".

Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.{{efn|But see ''National Basketball Association v. Motorola, Inc.'', 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of ''INS'' "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law)}} Outside diversity jurisdiction and when there is no federal statute,{{efn|In the words of Justice [[Robert H. Jackson]]: "Federal common law implements the federal Constitution and statutes, and is conditioned by them."<ref>D'Oench, Duhme & Co. v. FDIC, 315 US 447, 472 (1942), Jackson, J., concurring. Cited in Bradley, Curtis A. ''International Law in the U.S. Legal System.'' United Kingdom, Oxford University Press, 2015, 157</ref>}} post-Erie federal courts have continued to create causes of action.<ref>{{cite book |title=Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation |date=2021 |publisher=Oxford University Press|page=134}}</ref> Justice [[Lewis F. Powell Jr.|Lewis Powell]] strongly objected to this practice in an influential dissent for the case ''[[Cannon v. University of Chicago]]''.<ref name=popkin>{{cite book |last1=Popkin |first1=William D. |title=Statutes in Court: The History and Theory of Statutory Interpretation |date=1999 |publisher=Duke University Press |page=254 |quote=There is an old principle of law that every right has a remedy, which comes from an age when statutes often did little more than identify a legal wrong, leaving it to the common law to supply a remedy. But the courts extended this approach to infer a private cause of action even when the statute already provided specific (often administrative) remedies. The Court has recently retreated from an expansive inference of private remedies, first adopting a [[Cause of action#Statutory causes of action|four part test]] which imposed some limits on inferring a private cause of action, and then shifting to legislative intent test...Justice Lewis Powell put it most forthrightly in his dissent in ''Cannon v. University of Chicago'' where he stated that the Article III judicial power did not include the power to imply private causes of action from silent statutes.}}</ref>

==== United States executive branch agencies (1946) ====
Most executive branch agencies in the United States federal government have some adjudicatory authority. To greater or lesser extent, agencies honor their own precedent to ensure consistent results. Agency decision making is governed by the [[Administrative Procedure Act (United States)|Administrative Procedure Act]] of 1946.

For example, the [[National Labor Relations Board]] issues relatively few [[regulations]], but instead promulgates most of its substantive rules through [[#Disambiguate statute|common law (connotation 1)]].