Clients Last Name Goes Here 1 Common Law The Outline Introduction Common Law: Origin and Distinctive

Features Mr. Justice Holmes and South Pacific Co v. Jensen: Background Mr. Justice Holmes Dissent Conclusion References

The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified... (Southern Pacific Co. v. Jensen (1917) U.S. 222, p.244). These words belong to Mr. Justice Holmes who devoted many years to the study of the common law, to its role, value and power. But Holmes ideas about the common law are not unanimously acknowledged even today. And before dealing with Holmes and his approach we try to find out why arguments regarding American common law system arise at all. Common Law: Origin and Distinctive Features The US legal system is characterized as a common law system. Common law, according to the dictionary definition, is the ancient law of England based upon societal customs and recognized and enforced by the judgements and decrees of the courts. The common law traces its roots to the medieval idea that the law as handed down from kings court represented the common custom of the people. Common law courts based their decisions on prior judicial pronouncements rather than on legislative enactments (The Free Dictionary, 2012). This system came to the American territories (being English colonies at that time) in XV century from England. But the Americans gradually deviated from the original English common law producing an autonomous common law system with its own peculiarities. The two prominent dates: the 4th of July 1776 (the day of the US Independence) and the 17th of September 1787 (the day of the US Constitution), affected greatly the process. The appearance of the Constitution, a written law, is one of the essential discrepancies between the traditional English common law and evolving US common law. Besides, each state has its own Constitution due to historical, economical

Clients Last Name Goes Here 2 and territorial diversities. Another, purely American feature is the division of the American legal system into the two ones: federal and state, what consequently engendered a lot of discussions as to their jurisdiction, interaction, priority and principles of common law implementation (Pope, 1910, p.9). The major source of law for these both systems is precedent. But in the US common law precedent is not always as binding as it is in the English common law. For example, the US Supreme Court and the State Supreme Courts do not obligatory follow their own precedents and can change their decisions despite the existence of the analogous one. At the same time the previous decision and recently created one both have the same power (The Free Dictionary, 2012). Altogether these traits of the US legal system bring about a lot of debates regarding the nature of the American common law, its uniformity and even its existence at all. Mr. Justice Holmes and South Pacific Co v. Jensen: Background Justice Oliver Wendell Holmes, Jr. was one of those who tried to dissipate doubts as to the US common law. He was a prominent American jurist who served on the Supreme Judicial Court for twenty years (1902-1932), becoming chief justice. Holmes was capable of eloquently expressing his dissents. A lawyer seeking a quote from Holmes is never left wanting (American History, 1994-2012). Holmes published numerous articles on the common law. His most famous work is The Common Law (1881). In our paper we would like to dwell on the case of South Pacific Co v. Jensen in which he expressed his dissent. In his speech Holmes dealt mostly with common law and its problems in the US legal system. The case was about a stevedore engaged in unloading a ship at wharf at navigable waters in New York who was accidentally injured and killed. His widow demanded an award of compensation which was made against the shipowner by the New York Workmens Compensation Commission under the New York Workmens Compensation Act and affirmed by the courts of the state. The case was restored to docket for reargument to the US Supreme Court and reversed (Justia US Supreme Court Center, n.d.). Mr. Justice Holmes Dissent Oliver Holmes dissent was a kind of reproach to the court of a not proper evaluation and implementation of the US law and of judges not endowing the common law with the appropriate significance. Holmes manifests one of the features that he

Clients Last Name Goes Here 3 always said was peculiar to the US common law system that is its ability to meet the requirements of the present day life, being flexible to different conditions in different states as in the given case: The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact. It always is the law of some state, and if a district courts adopt the common law of torts, as they have shown a tendency to do, they thereby assume that a law of maritime origin, and deriving its authority in that territory only from some particular state of this Union, also governs maritime torts in that territory, - and if the common law, the statute law has at least equal force. On the other hand, the refusal of the district courts to give remedies coextensive with the common law would prove no more than that they regarded their jurisdiction as limited by the ancient, - not that they doubted that the common law might and would be enforced in the courts of the states as it always has been (Southern Pacific Co. v. Jensen (1917) U.S. 222, p.244). Oliver Holmes encouraging his idea speaks of the common law equity with and even prevalence over the other laws in the US: Even where the admiralty has unquestioned jurisdiction the common law may have concurrent authority and the state courts concurrent power (Southern Pacific Co. v. Jensen (1917) U.S. 222, p.244). At the same time Holmes diminishes the role of the minor law to which the very court adhered in its decision: The maritime law is not a corpus juris it is a very limited body of customs and ordinances of the sea. The nearest to anything of the sort in question was the rule that a seaman was entitled to recover the expenses necessary for his cure when the masters negligence caused his hurt. The maritime law gave him no more( Southern Pacific Co. v. Jensen (1917) U.S. 220, p.244). Holmes also dwells on the importance of judges who in case of Congress silence have authority to influence the outcome of the suit due to the common law system which donates them with the power of law making through their own decisions

Clients Last Name Goes Here 4 which are in their turn sources for the common law system: I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from moral to molecular motion( Southern Pacific Co. v. Jensen (1917) U.S. 221, p.244). Justice Holmes was not alone in his treatment of the common law. There were others adherents to the same ideas. For example, Justice Cockburn in Wason v Walter (1868) stated: "Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which a rise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied"( Duhaimes Legal Dictionary, n.d.). Or Justice McCardie said in Prager v Blatspiel and others (1924): "The object of the common law is to solve difficulties and adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law" (Duhaimes Legal Dictionary, n.d.). Thus, the US legal system originated from the English common law but after the adoption of the Independence and Constitution the system developed independently in the result of what a new common law system was formed in the USA. It was distinguished by the existence of written Constitutions, by division into two legal systems: federal and state and by the peculiarities of social, economic and political development of each state. These features brought and still bring some disorder into the American Legal system that is why the questions aroused whether common law exists at all in the USA and what its essence is. Mr. Justice Holmes was one of the vivid advocates of the common law. According to him American common law existed and it was applicable. Moreover, its peculiarities only added to the Holmes idea that common law should be alive, flexible

Clients Last Name Goes Here 5 and up-to-date because it conformed to different times, conditions and policies of different states of the USA. And such system with all its features and complex structure sometimes even contradictory is the very common law system of the USA.

Clients Last Name Goes Here 6 References American History. Bibliographies, 1994-2012. Justice Oliver Wendell Holmes, Jr. (18411935). [online] Available at: http://www.let.rug.nl/usa/biographies/oliver-wendellholmes/ [Accessed 4 Sep. 2012]. Justia US Supreme Court Center. Southern Pacific Co. v. Jensen-244 U.S. 205 (1917). [online] Available at: http://www.supreme.justia.com/cases/federal/us/244/205/case.html. [Accessed 5 Sep. 2012]. Duhaimes Legal Dictionary. Common Law Definition. [online] Available at: http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx. [Accessed 5 Sep. 2012]. Pope, H., 1910. The English Common Law in the United States.[online] The Harvard Law Review Association. Vol.24, No.1 Available at: http://www.jstor.org/stable/1324643 [Accessed 4 Sep. 2012]. The Free Dictionary, 2012. Common Law. [online] Available at: http://www.thefreedictionary.com/common+law [Accessed 4 Sep. 2012].