LLM Common Law Research & Writing Resources

The Legal Information Institute defines common law as "a law that is derived from judicial decisions instead of from statutes." Where civil law utilizes legislation designed to cover every eventuality, common law uses judicial interpretation to apply the written law to specific situations. Common law systems are adversarial, instead of investigatory, with the judge moderating between two opposing parties. 

A key element of the common law system is its reliance on and use of precedent, or stare decisis. A precedent is a history of judicial decisions that form the basis of evaluation for future cases of a similar nature. The judge presiding over a case determines which precedents are relevant and can be applied to that specific case. 

Common law is also frequently referred to as case law because it relies on detailed records of similar situations and statutes due to a lack of an official legal code that can be applied to a given case. It is not uncommon to see "common law" and "case law" used interchangeably because they often refer to the same legal system used by U.S. courts.

The following is a select bibliography of articles and online resources detailing the history of common law and how it is used in the US legal system.

Common Law vs. Civil Law

• Civil/Common Law, Judiciaries Worldwide
  • A detailed chart comparing common law and civil law traditions in various [[ways??]] including judicial roles and training, roles of lawyers and other justice sector officials, court proceedings, and more. 
• Comparison of Civil Law and Common Law, Chris Arnold, 2007
  • A historical and functional comparison of the common and civil law traditions.
• Civil Law versus Common Law, LegalMatch
  • A brief article discussing the major differences in how common and civil law courts and trial proceedings function. 
• Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), William Tetley, 1999
  • A thorough overview of the common and civil law legal systems. This article distinguishes between the two systems in their approach, style, interpretation, and substance; offering various points of comparison for a better understanding of their differing doctrines and approaches. 
• The myths and reality of common and civil law, Harvard Law Today
  • A detailed summary of a presentation given by Harvard Law School Professor Holger Spamann examining the myths and realities of the common and civil law systems. A recording of the lecture is also provided at the end of the article for additional information.

History of the Common Law System

• Common Law, Britannica
  • An extensive overview detailing the history of the common law tradition beginning with King Edward I (reigned 1272-1307) to the modern day. 
• The Common Law and Civil Law Traditions, Berkeley Law
  • An excellent article discussing the historical development of the common law system and its divergence from civil law traditions. 

How the Common Law System Works

• Basic Concepts of American Jurisprudence, LexisNexis 
  • An excerpt from the book American Legal Systems: A Research and Reference Guide detailing the basic concepts behind American legal principles and how they affect the American legal system. 
• Common Law: What It Is, How It's Used, and How It Differs From Civil Law, Investopedia
  • An informative introduction to the common law system and how it's used in the U.S., including special considerations and examples of common law in action. 
• Introduction to the American Legal System, Northwestern Pritzker School of Law
  • An informative overview of the American legal system created by Northwestern Law with example scenarios to help further students' understanding of how the common law system functions in the U.S. 
• Modes of Constitutional Interpretation, Congressional Research Service
  • This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation.

Understanding (American) Common Law Courts

• Courts 101: An Understanding of the Court System, IJIS Institute 
  • This paper was prepared to help you better understand the intricacies of the Judicial Branch in local, state, and federal courts by providing a high-level overview of the court system, its processes, responsibilities, case flow, and personal roles.
• The Federal Court System in the United States, Administrative Office of the U.S. Courts 
  • The Administrative Office of the U.S. Courts developed this publication to provide an introduction to the federal judicial system, its organization and administration, its relationship to the legislative and executive branches of the federal government, and its relationship to the state court systems.
• Procedures: Precedent and the U.S. Court System, National Agricultural Law Center
  • A brief article presenting a basic overview of the American legal system and how it shapes our court hierarchy. 
• Understanding the Federal Courts, Administrative Office of the U.S. Courts 
  • This publication was developed by the Administrative Office of the United States Courts to provide an introduction to the federal judicial system, its organization and administration, and its relationship to the legislative and executive branches of the government.