Talk:Common law/Archive 6

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Lead

The lead says that 49 of the 50 United States use common law. This naturally raises the question in the reader's mind: "Which State doesn't?" I think we can answer that question simply and easily without going into detail by adding: "- Louisiana being the exception". Any objections, thoughts, brilliant comments? American In Brazil (talk) 11:26, 19 January 2016 (UTC)

The sentence seemed cumbersome to me, so I simplified it to read, "the United States (both the federal system and that of its states, except Louisiana)". —grolltech^(talk) 02:49, 26 January 2016 (UTC)

Brilliant solution. Why didn't I think of that? -American In Brazil (talk) 15:28, 29 January 2016 (UTC)

The problem with this "solution" is that it's too simple -- it's wrong. Louisiana law is in many respects common law--French/Spanish civil law only survives in a small compartment. Any accurate explanation is too complex a navel-gaze for the introduction to an article on world wide common law, and is quite out of place in this article. So I took the article back to where it was originally -- say enough to be truthful, enough to prompt the curious to ask the relevant question, and provide an easy link to the answer.

But then we run into the problem discussed in the previous section -- the "breakout" of "Common law systems in the present day" broke the integrated continuity. Which leads me to propose that that break-out was not a good move.

204.9.220.36 (talk) 20:05, 6 February 2016 (UTC)

Create new sub-page

This article is getting very long. I suggest that the section "Common law legal systems in the present day" should be a new page, and its contents summarised as a very briefly annotated list on the current page. Arrivisto (talk) 17:44, 31 December 2015 (UTC)

I think this was a mistake, for several reasons.

1. Like any other common law subject, one can only understand the principle by seeing application to specific cases. This article has lost something without this material.

2. Conversely, without the surrounding context, the split-off "Common law legal systems in the present day" just feels like an incomplete rump treatment.

3. There are several internal links in this article to the removed material, which are now broken.

4. Let me peel back one question and probe two underlying assumptions -- what is wrong with "very long?" And is the article "very long?" The Encyclopedia Britannica article on common law is 100 pages of tiny tiny type.

5. Speaking as one reader, and strongly as one editor, I find it far easier to deal with subject matter when the entire relevant topic is collected in one place. As a reader, dealing with broken-apart bits, and then having to reassemble the thoughts for myself from disparate pages, is much harder. As an editor, I see it time and again--when there are multiple pages on basically the same topic, no one takes love of any of them, they all stay a mess, entropy creeps in, ideological cranks start to vandalize, the split-apart pages start to diverge from each other, and quality degrades.

I think this was a mistake. I propose to reintegrate this.

204.9.220.36 (talk) 19:47, 6 February 2016 (UTC)

Fair enough! Arrivisto (talk) 11:55, 24 February 2016 (UTC)

Three connotations

Where does this "three connotations" concept coming from? It sounds like original research. Certainly it's not so widely accepted that it does not require a source or some attribution. The sources provided also don't discuss this "three connotations." I'm going to remove it until better sourcing can be provided. FuriouslySerene (talk) 20:16, 4 May 2016 (UTC)

I've done more digging to try to figure out where this phrasing came from. I see the original "three connotation" thing was added to the article way back in 2006 by an IP, where the editor called it three "important" connotations, which is at least somewhat more accurate according to legal dictionaries: [1]. Another editor Boundlessly (as he was then called; later Vanished user fweflklkaskwi4r592uofmoaihr) seems to have expanded its use throughout the article, although from what I can tell it's not based on any actual source. Boundlessly identified himself as a lawyer and seems to have changed it to "four connotations" at one point. The actual section has been rarely edited throughout the years. Seems like it just stuck around. Anyways, legal dictionaries and other sources do not use this phrasing. I still maintain it is original research, or at the very least, giving undue weight to a single source (which hasn't been identified properly). It is not commonly accepted that "common law" has only three connotations, from what I can tell. FuriouslySerene (talk) 17:21, 5 May 2016 (UTC)

The three connotations of the term common law are indeed widely used among legal scholars. The three different connotations are so familiar to lawyers (at least those trained in countries whose system originated in English common law) that we don't even really think about it that much. I'll see if I can come up with some examples of uses of the term in the three different ways, but I can't get to it right now. Famspear (talk) 18:15, 5 May 2016 (UTC)

I think you may have misunderstood my point. I am not arguing that these three specific definitions are inaccurate (although they may be). I am saying that the article presents the term common law as having three widely accepted "connotations" and then uses "connotation 1", "connotation 2" etc throughout the article. My review of legal dictionaries does not reflect this understanding. For example, Garner's Dictionary of Legal Usage describes "common law" in four types of usage, each of which it gives several different meanings. In the Oxford Dictionary of Law, there are 3 different meanings given, but those are not the same as the ones in here. In Webster's New World Law Dictionary, there are only two definitions given. My point is that the information is currently presented in an unsupported manner. There is no broad consensus in legal texts that there are "three connotations" to the term, and yet, it's presented as if this is a fact, without any attribution. Additionally, the internal linking in the article isn't appropriate under the MOS. FuriouslySerene (talk) 18:41, 5 May 2016 (UTC)

I think you may have misunderstood my point. My point is that the terms, the three connotations, are widely accepted, especially in the legal community, where it really counts. Indeed, the three uses of the term are so widely accepted that the person who inserted them in the article may have been a lawyer who simply did not consider the problem that in Wikipedia, we want things to be properly sourced. My point is pretty much the same as yours, otherwise: that we may need to find some actual sourcing. That's why I said I would see if I can come up with some examples of uses of the term in the three different ways; I was referring to looking for examples of reliable sources.

Another point: Sometimes, the most basic stuff about a particular subject is actually somewhat difficult to support with citations to sources. For example, if you were to go into a U.S. federal court and argue that under the U.S. Constitution, federal courts have no legal authority or power to have "court reporters" and "bailiffs" and "court clerks" because the U.S. Constitution doesn't actually mention any such legal authority or power, that would probably be considered a frivolous argument. A monetary penalty or fine could be imposed on you for trying to make such an argument in court. This would be so, even though you may well not find any mention of such a power, etc., in any previous court case interpreting the U.S. Constitution (I don't know, I made up this example, just now). Some concepts are just so basic that no one -- at least no psychologically normal person -- may think of trying to litigate them. That means that you may not be able to find much.

I am not saying that being concerned about finding sourcing for the three different meanings of the term common law is as silly as trying to argue that Federal courts have no constitutional power to have a court reporter. I'm saying that the various meanings of the term common law are pretty basic in the legal world. Again, let's look for some sources, but let's not strain too much -- and thereby make ourselves look silly -- here in Wikipedia. Famspear (talk) 20:36, 5 May 2016 (UTC)

I'm not too familiar with making arguments about US constitutional law in a US federal court but I do know (as I'm sure you do as well) that a core policy of Wikipedia is verifiability. I also am guessing you wouldn't go to court and argue your opponent's factum that cited to three cases is wrong by saying your position was widely accepted. Anyways, I look forward to seeing your sources, perhaps I am wrong - perhaps the term only has three very specific connotations and sources call them "connotation 1", "connotation 2" and "connotation 3". However, I've cited to three sources and none of them agree. Also note this is English Wikipedia, not American Wikipedia. If it's defined that way only by American lawyers it need to be properly contextualized, as the term is used around the world. FuriouslySerene (talk) 21:47, 5 May 2016 (UTC)

FuriouslySerene, do I understand your concern correctly -- you don't have any question that the term "common law" does in fact have several distinct connotations (at least three)? And that you agree (or at least do not contest) that the three set out here are at least correct, and each taken individually is supported by the sources that are respectively footnoted? Rather, is it fair to say that your question is verifiability for labeling, specifically for labeling them "connotation 1," "connotation 2," "connotation 3?"

To answer your "by the way" question, it is entirely permissible to argue to a court that certain points are commonly known, without sourcing them. It's called "judicial notice." Rule 1 of the Federal Rules of Civil Procedure requires parties and judges not to fall back on pedantic nonsense to impose pointless costs. If something just "is," we all accept it and move on.

A few examples. The sun comes up in the east. In 2016, temperature is measured in Celsius, Farenheit, and Kelvin, even though there have been lots of other temperature scales over the last several centuries, and it's entirely plausible to discuss those three and leave all the others undiscussed. And among lawyers and the legal academy, the term "common law" is commonly used in several ways, and among all the definitions in use, the dominant usages are the three set out here.

I agree with Famspear -- the three primary meanings of "common law" (with a nod to other historical or archaic or uncommon uses) is one of those observations of practical reality that every person with practical experience in the field "just knows."

204.9.220.36 (talk) 16:12, 16 May 2016 (UTC)

Yes, labeling them as "connotation 1" "connotation 2" etc. is original research. It does not exist in any reliable source. You continue to assert that it is "widely known" that there are three connotations, yet you have not introduced an iota of evidence in the week and a half since the discussion began, beyond your own repeated assertions. I do think it's rather ridiculous to claim the existence of "three connotations" is on par with the sun rising in the east. I would encourage you to read WP:Verifiability: "In Wikipedia, verifiability means that anyone using the encyclopedia can check that the information comes from a reliable source. Wikipedia does not publish original research. Its content is determined by previously published information rather than the beliefs or experiences of its editors. Even if you're sure something is true, it must be verifiable before you can add it." FuriouslySerene (talk) 22:04, 16 May 2016 (UTC)

FuriouslySerene –

I’m deeply puzzled by several aspects of your remarks.

First, the article says “The term common law has three main connotations and several historical meanings.” You write “you have not introduced an iota of evidence” that there are “three connotations.” But, as we’ll see below, the sources footnoted in the article all along support the three meanings directly. Further, all on your own, you concede that there are at least four. How is the article’s wording, “three main and several additional connotations” not supported by the footnoted sources and your own concession? For a moment, I was at a loss to see the basis for the complaint.

Then I saw your edit of 5 May 17:21, where you write “It is not commonly accepted that “common law" has only three connotations” Now I see the problem—you inserted the word “only” apparently out of thin air. Your misquotation changes the meaning entirely! That makes it very clear that wherever the problem lies, it is not the original article.

Second, in your edit history, you write “removing selflinking per WP:MOS” Again, I am puzzled. The WP:MOS article on “Self-references to avoid” quite carefully does not forbid all self-linking, but only self-linking of certain categories. The self-links in “common law” are not in these forbidden categories. In fact, WP:MOS says “Other examples of permissible self-references of this sort include disambiguation links.” Every self-reference in this article disambiguates among the various connotations. Again, the source of the problem is clearly not the article.

Third, and most striking, you write “yet you have not introduced an iota of evidence in the week and a half since the discussion began, beyond your own repeated assertions.” Let’s match up the “connotations” given in the article, with the definitions given in the footnoted sources, shall we?

Connotation 1: “One connotation distinguishes the authority that promulgated a law. For example, most areas of law in most Anglo-American jurisdictions include "statutory law" enacted by a legislature, "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or "case law", i.e., decisions issued by courts”. (footnoted to Garner p 177 and Salmond p 32>

Salmond, definition 1, Common law and statute law. By the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation.”

Garner, common law A: “Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law…”

Not only is the definition supported, even the numbering as “connotation 1” is directly supported by Salmond.

Connotation 2: Connotation 2 differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. (footnoted to Garner p 178).

Garner definition 3: in comparative law, a body of law based on the English legal system, as distinct from a civil law system

Connotation 3: Connotation 3 differentiates "common law" (or just "law") from "equity" (footnoted to Garner p 177, Salmond p 32)

Garner, common law A: Second, …. in this sense, common law is distinguished from equity.

So we see that each of the three connotations has direct support in the very sources that were footnoted all along, well more than an “iota.” I asked you to look at “the sources that are respectively footnoted,” and it is perfectly clear now that the problem we’re having here has no underlying cause in the article, its footnotes, or the commenters here that ask you to compare them. The problem lies elsewhere.

Fourth, you write, in the context of facts amenable to judicial notice, “I do think it's rather ridiculous to claim the existence of ‘three connotations’ is on par with the sun rising in the east.” In some cases, a court may take judicial notice of knowledge among experts in the relevant field. For example, the testimony of fingerprint experts is amenable to judicial notice. Likewise, a court may take judicial notice of definitions in dictionaries, such as those footnoted here. It is readily apparent that the problem underlying your comment on judicial notice is your lack of familiarity with basic terminology of the field or of relevant legal standards, and rather startling lack of careful reading. I see no problem with anything that Famspear or my earlier post offered here, and nothing that warrants your response. I am likewise puzzled that you stridently contest “the existence of ‘three connotations’” after you admit the existence of four (at a minimum), and the footnoted sources showed those three connotations in common use.

Fifth, you write “The actual section has been rarely edited throughout the years. Seems like it just stuck around.” Isn’t the most plausible explanation for why something just “stuck around” through over 1000 edits, is that it’s correct, and everyone else that had some question looked at the footnotes? Again, it appears that the source of the problem lies elsewhere, other than the article or its history.

Sixth, you quote the “verifiability” rule. In what respect are the pre-existing footnotes insufficient to establish “verifiability” of the three connotations (which, it seems, you have reverted to complaining about). It certainly appears that the problem lies in the eye of a beholder who failed to read the footnoted sources, not with the article.

Seventh, complaining that merely numbering things is “original research” strains the definition of “research” well past the breaking point. In what sense is this “research?” The Wikipedia “Contents” panel on every page assigns numbers to sections—does that make it “original research?” No, of course not—simply numbering things is not “research.” Likewise, your complaint bursts well past the bounds of practical writing. The body of the article has to have some kind of “handle” to disambiguate the various uses of the term—what more neutral reference basis is there for the three connotations than to simply number them?

To sum up all the above, FuriouslySerene, using Famspear’s terms, by complaining this vociferously about merely numbering variants of a thing, and so willfully refusing to consider the existing footnotes, aren’t you making yourself look silly? Or has it crossed the line over to trolling (in the sense of disagreeing for no purpose other than to disagree)?

204.9.220.36 (talk) 14:48, 18 May 2016 (UTC)

hearing no objection, I will back out a series of poorly-considered edits.

204.9.220.36 (talk) 21:04, 23 May 2016 (UTC)

Intro

The current intro is: Common law (also known as case law or precedent) is law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases. Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch.

The intro is preceded by (hidden) warnings to editors, beginning "1. The first three paragraphs of this article are correct, and the language is in proper idiom. They have been heavily vetted over years by lawyers, and now reflect a consensus. Until you have discussed your proposed changes on the talk page and there is consensus supporting your proposal, please do not change this introduction section."

How this insipid intro to a major topic can claim to be "correct" and "reflect a consensus" is beyond me; and I propose shortly to knock it into shape! Arrivisto (talk) 16:32, 25 February 2016 (UTC)

The edit history speaks for the "consensus" point. Please make a proposal here before you edit the text itself. I notice on your Talk page, Arrivisto, that your edits are, shall we say, not met with universal acclaim.98.229.147.75 (talk) 01:42, 29 February 2016 (UTC)

And that your "Create new sub-page" from two sections above had to be backed out. Please make a proposal here on the Talk page before you edit the text itself.98.229.147.75 (talk) 01:44, 29 February 2016 (UTC)

Remove, restore and copyedit

There is no RS for putting parenthetically after the opening words, which repeat the Title, "(also known as case law or precedent)". The parenthetical words are unsupported by the sources cited, namely, Duhaime's Law Dictionary[2] and Black's Law Dictionary - Common law (10th ed.). 2014, nor is that wording a summation of the article content as a whole. It reads as if from a novice student's attempt to make sense of what s/he mistakenly understood s/he had been taught. Editors here will know that it is the process by which the common law has historically evolved and continues to be developed that is commonly known, in brief, as combining "case law" with "precedent", as the article content explains (per the sources). As at the end of December 2013, the wording was " A common law legal system is a system of law characterized by case law which is law developed by judges through decisions of courts and similar tribunals. " That is correct and consistent with the source and article. The incorrect wording stemmed from an IP revision in April 2014.[3] Qexigator (talk) 17:40, 30 May 2016 (UTC)

Qexigator, in what states or jurisdictions are you admitted to practice? Your edits and remarks here do not communicate familiarity with the jargon of the specific field.

The first words in the Duhaime definition are "Judge-declared law." What's your basis for moving off that? The Garner law dictionary reads common law A: “Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law…” What's your basis for moving to a definition that is less common?

You've reframed the article away from the precise and technical defintion used in the law to a layman's meaning that isn't very instructive -- your layman's definition is imprecise, and both over-inclusive and under-inclusive. I notice you added a large quote from the Oxford English Dictionary -- a non-specialist dictionary. Anyone with any experience in the law would never do that -- specialist dictionaries govern over general English dictionaries (which is only one of several things that leads me to question your familiarity with the topic). Before your edits, a long-standing consensus stated the very specific definition(s) used by those in the legal system. The layman's definition tends to mislead. Just to take one example among many, a lot of the anti-tax and anti-government crank groups rely on the layman's definition to create a lot of confusion and mischief, and I doubt that you want to be responsible for promoting that nonsense.

By the way, I'm hardly "a novice student's attempt to make sense of what s/he mistakenly understood s/he had been taught." I am asked to brief cases at the Supreme Court a couple times per year, argue cases in the Courts of Appeals (the second-tier courts), clerked for a federal judge, have argued cases before presidential appointees in the Executive Office of the President, and fairly regularly meet with House and Senate members. I have a pretty good handle on how this jargon is used. Expertise doesn't vacate the need for reliable sources -- but it does affect one's ability to choose more reliable over less reliable, to read those sources, and to consolidate those sources into an article accurately and precisely.

98.229.147.75 (talk) 18:20, 30 May 2016 (UTC)

Noted that the IP claims having a pretty good handle on how "this jargon" is used in the US Congress, Supreme Court etc. For the information of anyone interested in the editing of this article, suffice to say I am well acquainted with the topic, as my edits show,[4] and, for my part, any further improvements to the article would be welcome, whether in respect of informative content, presentation or format. Most editors (but not necessarily most readers) will be aware that the common law was brought to north America from England, and has continued to develop in the USA, in England and Wales, and in other countries, as outlined in the current version of the lead and the section headed "Description". Perhaps the version of the opening sentence as at the end of 2009[5] could be reconsidered: "Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action"? Qexigator (talk) 22:07, 30 May 2016 (UTC)

Sorry, Qexigator, it's your edits and non-idomatic use of basic terminology that betray your lack of familiarity, at least familiarity at a level of precision. As I'm going through your edits looking for helpful edits to retain, your lack of understanding of how the law works, and lack of knowledge of idiomatic usage, are really apparent. It doesn't make you a bad person (FuriouslySerence, on the other hand...), but it does counsel that perhaps you should exercise some judgment and deference to others that do know the area.

You do point out something valuable, that there is an everyday, layperson usage. I added a section to explain it, and to point out why that lay meaning is never used by lawyers.

You dropped your sentence on Pollock and Maitland in between sentences discussing Blackstone. The result was nonsensical. Please exercise more caution. At first, I kept your addition out of deference to you, even though Pollock simply isn't on the radar. It has nothing near the stature of Coke, Blackstone, or Holmes. Then I looked at it. It was published in 1898 describing practices from nearly 1000 years earlier. It was only a historian's description -- it was never intended to be relevant to actual practice of law or decision-making of judges. So after earlier keeping this addition, I have now removed it. That you added a discussion of Pollock and Matland in the text of the introduction is pretty convincing evidence that you don't know the subject -- you certainly have no experience to know what's important and what isn't.

Also, it's been pointed out that the internal links are there to disambiguate between the multiple meanings. Self-links for disambiguation are expressly permitted by the MOS. https://en.wikipedia.org/wiki/Wikipedia:Manual_of_Style/Self-references_to_avoid ("Other examples of permissible self-references of this sort include disambiguation links...")

98.229.147.75 (talk) 22:51, 30 May 2016 (UTC)

Quexigator, you opened this dicussion as follows:

There is no RS for putting parenthetically after the opening words, which repeat the Title, "(also known as case law or precedent)". The parenthetical words are unsupported by the sources cited, namely, Duhaime's Law Dictionary[6] and Black's Law Dictionary - Common law (10th ed.). 2014

Hmm. Now after a trip to the library to look at "Black's Law Dictionary - Common law (10th ed.). 2014," the very source you cite, we see --

1. The body of law derived from judicial decisions... CASELAW

It's right there under your nose, in the very place you say it isn't. Please explain.

98.229.147.75 (talk) 09:57, 3 June 2016 (UTC)

Improving opening sentences

It is proposed that version P below would be better suited to the lead's opening sentences than is the existing version E[6] retained by an IP edit, partly by removing verbiage for crisper prose, and partly to ensure accuracy of wording in relation to sources currently cited.

• P (proposed) A common law legal system is characterized by case law developed by decisions of judges, courts, and similar tribunals, stated mainly in "leading cases" or "landmark decisions" which have precedential effect on future cases. Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. The body of existing common law binds judges in current cases to ensure consistent treatment.
• E (existing version) Common law (also known as case law or precedent) is law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases. Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. The body of past common law binds judges that make future decisions, just as any other law does, to ensure consistent treatment.

The proposed change:

Common law (also known as case law or precedent) is law A common law legal system is characterized by case law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases. mainly in "leading cases" or "landmark decisions" which have precedential effect on future cases. Common law is a third branch of law, in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. The body of past existing common law binds judges that make future decisions, in current cases just as any other law does, to ensure consistent treatment. Qexigator (talk) 14:48, 2 June 2016 (UTC)

This proposal has many problems, almost all of which are either evident in the contrast between the proposed text and the footnotes, or discussed earlier on this Talk page.

To set some context, note the structure of the first two paragraphs of the article:

• the first paragraph of the article is about “common law” as a source of law, in distinction to statutory and regulatory law
• the second paragraph is about “common law” as a system, the system descended from England, in distinction to “civil law”

The first problem is that your proposal violates the very sources you footnote. The proposal makes the first paragraph be about the “system” sense of the term. But the footnotes point to the “source of law” sense of the term:

• Your first footnote is to Garner. He writes “perhaps most commonly within Anglo-American jurisdictions, ‘common law’ is contrasted with statutory law.” It’s more than passing odd that you would propose to not only displace the “most common” usage from primacy of place, but to obliterate this sense from the introduction entirely.
• Your second footnote is to Duhaime. Duhaime’s very first words, the first definition, is “Judge-declared law,” that is, the “source of law” sense of the term. Of the definitions in Duhaime, none correspond to the “system” connotation. Your proposal to make the article disagree with your sources is rather surprising. Similarly, your proposal to eliminate Duhaime’s first definition from the introduction is at best counterintuitive.
• Your third footnote is to Black’s 10th Ed. Black’s first definition—quoted under your nose right here in the very footnote you see in this Talk discussion—is the “source of law” connotation, “The body of law derived from judicial decisions, rather than from statutes or constitutions” not the “system” connotation.

You’re starting with a paragraph that introduces the “most common” sense, that has perfectly good citations to reliable sources. You propose to retarget the paragraph to a secondary definition, and propose to remove the sense that—according to all three of the sources you cite—is either the “most common” sense of the term or stated as the first definition. The rationale for your proposal escapes me. Could you elaborate?

The second problem is redundancy. The “system” connotation for “common law” is in the second paragraph of the article. Why do you propose to make the first paragraph redundant with the second?

The third problem is a lack of reliable sources, and consequent substantive error. You propose “stated mainly in ‘leading cases’ or ‘landmark decisions’ which have precedential effect on future cases.” (a) You give no citation to any reliable source. (a) There’s a simple reason for no reliable sources: your statement is simply wrong. Any brief or court decision cites many dozens of times as many “small” or “fine” points as “leading or landmark” cases—“landmark” cases are a true rarity, which is why we call them “landmark.” Common law is in no way “mainly” “leading or landmark” decisions. Common law is “mainly” routine stuff, and the small glosses at the boundaries.

The footnotes are right there, yet from all appearances you didn’t read them. All the issues in this posting were brought to your attention earlier on this Talk page. Before we go any further, can you please offer an innocent explanation for

• your failure to cite reliable sources after your attention was specifically drawn to the problem
• your edits that are in direct conflict with the very sources you cite
• your failure to observe the relationship between the two paragraphs after it was brought to your attention,
• the rationale for your proposal to remove the “most common” sense of the term from the introduction,
• your failure to engage with any of the discussion in previous sections of this Talk page—we can’t make any progress if you don’t read what’s already here, and
• your imprecise and non-idiomatic use of specialist language, even though your own footnoted sources would have led you to something more mainstream?

Other than your own say-so that “I am fully conversant with the nature, history and practice of the common law” what evidence do we have to deduce that? Don’t tell me, show me. Your work product communicates louder than your statements.

98.229.147.75 (talk) 01:51, 3 June 2016 (UTC)

By the way, adding "open justice" to the "Stages of a common law trial" is not an edit that reassures us of your "fully conversant" familiarity with the jargon of the art. "Open justice" is a fine thing, but it's not a "stage" like the other items in this list.98.229.147.75 (talk) 02:24, 3 June 2016 (UTC)

IP's comments noted, pending "about a week [from 31 May] so [IP] can get to a paper library" (responding to Rfc on "three connotations"). Meantime, further constructive comment from others will also be welcome. Qexigator (talk) 05:47, 3 June 2016 (UTC)

You're the proponent of the change. Among those who are "fully conversant" with legal principles, we all know that the burden to explain is on the person who seeks a change in the status quo. Especially here, where it's a long-standing consensus discussed at length by lawyers who work with the subject matter every day.

This is the second time you raised essentially the same issue, see https://en.wikipedia.org/wiki/Talk:Common_law#Remove,%20restore%20and%20copyedit above. You began that discussion as follows:

There is no RS for putting parenthetically after the opening words ... "(also known as case law or precedent)". The parenthetical words are unsupported by the sources cited, namely, ... Black's Law Dictionary - Common law (10th ed.). 2014

"Black's Law Dictionary - Common law (10th ed.). 2014," the very source you cite, reads as follows --

1. The body of law derived from judicial decisions... CASELAW

Qexigator says the words "case law" are not in Black's, Black's puts it in all caps.

Just so everyone knows how much credibility your explanation would warrant, should it appear.

98.229.147.75 (talk) 10:18, 3 June 2016 (UTC)

Noted.[7] Qexigator (talk) 06:39, 5 June 2016 (UTC)

Interestingly, the IP's gleeful comment has, probably unwittingly, made my point for version P. But, for the information of anyone interested in the editing of this article, here is another clear instance of the IP misrepresenting others: Qexigator says the words "case law" are not in Black's. My comment above, at the top of section "Remove, restore and copyedit" was quite otherwise: "The parenthetical words are unsupported by the sources cited, namely, Duhaime's Law Dictionary[6] and Black's Law Dictionary - Common law (10th ed.). 2014, nor is that wording a summation of the article content as a whole". Duhaime's Law Dictionary[8] reads (I will bolden "case law", but leave typos as found): "Common Law Definition: Judge-declared law. Law which exists and applies to a group on the basis of customs and legal precedents developed over hundreds of years in Britain. A body of English law of law which originated with an oral tradition of tribal justice in Britain thousands of years ago and which developed into a unique, cohesive national body of law (the realm) developed and set to writing by English judges over time, and which was eventually imported as the law of British colonies throughout the world such as the United States of America (except Louisiana), Canada (except Quebec) and India. "The common law is judicially created law that is developed on a case by case basis," wrote Chief Justice Hannah of the Supreme Court of Arkansas in Mason v State. In R v Rusby, Justice Kenyon wrote: "The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilized society itself, and was formed from time to time by the wisdom of man." Two other sources have contributed to the common law although often described as exceptions thereto: equity and laws imposed by parliament (statutes), both of which have been stated to have, where they differ with the common law, precedence over it. William Blackstone wrote in his Commentaries on the Laws of England (1756), that common law was: "... to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treastises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law." Because it is not written by elected politicians but, rather, by judges, it is also referred to as unwritten law or lex non scripta. Judges sought those principles out when trying a case and applied the precedents to the facts to come up with a judgment. Baker wrote: "There was probably never a time when the common law was not in some sense case law.... "(T)the student cites the Roman maxim that one should follow reasons rather than precedents but the master qualifies this by saying that where the reasons for things are obscure, it is enough to follow precedent. "By the time of Bracton, the influence of judicial practice is clear on the face of the text. The author of the preface stated that he had written the book in order to prevent the newer generation of judges from unwittingly leaving the right course settled by their wise predecessors."Civil law pundits have had their fun with this; the French, for example, chiding the English with having a case law obsession (la superstitition du cas). Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the: "... common sense of the community, crystallized and formulated by our ancestors". The roots of common law can be found in customs for resolving disputes which had evolved in England since the Roman occupation of the Island some 2,000 years ago. But the Germanic invaders of Britain, as the Romans left, tore up most of the roots Roman law had planted. Gibbon wrote: "The ferocious Saxons trampled on the laws of Rome...." (etc.) Qexigator (talk) 14:01, 3 June 2016 (UTC)

If this discussion has shown anything, it's that it's pointless to engage with the IP, who is borderline disruptive and seems to struggle with basic reading comprehension. The incessant personal attacks on anyone who doesn't agree with him are really unhelpful. Hopefully the RfC attracts more attention. I think your proposed edit is an improvement on what's currently there. However, common law has different meanings: it refers to both a system of law and the actual laws that are derived from legal decisions. I think mention of that needs to incorporated in the introduction. Also, personally I don't think Duhaime isn't the most reliable source. FuriouslySerene (talk) 17:15, 3 June 2016 (UTC)

Thanks. I agree with you wholeheartedly that "common law" has multiple meanings (that's why they're laid out as the separate "connotations" -- your previous concern is now more puzzling than ever), and two of the most important are "actual laws" and "a system of law." Note that that's exactly how the Introduction is organized -- two paragraphs, one for each of these two. I take your comment as confirmation that the Introduction is organized correctly, not that anything more needs to be done to "incorporate" the two meanings, right? By the way, did you read any of the previous discussion in this very section? 98.229.147.75 (talk) 19:10, 3 June 2016 (UTC)

Perhaps, FuriouslySerene, you and other commenters here are familiar with the online edition of Black.[9] It is more likely to be accessible to the putative layman, or anyone else viewing the article with an intelligent interest in its content, than the current edition. The online entry for "COMMON LAW" is on page 345/6. This begins by stating that as distinguished from Roman law, modern civil law and other systems of law, it is "that body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Ango-Saxon stock. Lux v. Haggins, 69 Cal. 255, 10 P.674." It continues, with citations from leading cases in USA law reports, with a series of paragraphs beginning "As distinguished from-- ..."law created by the enactment of legislatures..."; "equity law..."; "ecclesiastical law..." Then a paragraph beginning "As concerns its force and authority in the U.S., the phrase designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States. Industrial Acceptance Corporation v. Webb, Mo.App., 287 S.W. 657, 660......Trust & Savings Bank, 182 Cal. 177, 187 P. 425, 427. The common law of England, adopted by Pol. Code Cal. § 4468, does not refer solely to the lex non scripta, the common law unmodified by statute, but contemplates the whole body of jurisprudence as it stood, influenced by statute at the time when the Code section was adopted, and also embraces equity. Martin v. Superior Court of California in and for Alameda County, 176 Cal. 289, 168 P. 135, 136, L.R.A.1918B, 313." It ends For "Federal Common Law," see that title., and that simply describes FCL as "a a body of decisional law developed by the federal courts untrammeled by state court decisions." I see nothing there to support the opening words of E above (the present version of the article). Qexigator (talk) 20:49, 3 June 2016 (UTC)

Did you look at it carefully? Fourth Edition, 1968. We are now at 10th Edition, 2013. 98.229.147.75 (talk) 21:09, 3 June 2016 (UTC)

Yes, IP, as you can see above, that is the point. So....? Qexigator (talk) 21:17, 3 June 2016 (UTC)

In the law, if you cite an old source, a source that has been superseded and replaced with something else that goes against you, you not only lose that issue, you get sanctioned. The sanction can be a fine, or a loss of that specific issue (so you might have evidence excluded, a witness is not allowed to testify, you lose the right to argue something, a deadline is moved to penalize you, or some such thing). In extreme cases, such as where you couldn't not know that your source was superseded, or the obsolescence is expressly brought to your attention in time for you to self-correct, a court may order that the case is over and you lose, or report you to your state bar registrar, who starts disciplinary proceedings, up to and including disbarment.

At the very least, if you cite an obsolete or superseded source, you have to tattle on yourself, and explain why you're doing it. Almost always, the explanation makes the original statement look simply silly. Thus most lawyers go through their whole careers without (knowingly) citing an obsolete source.

Lawyers may not be the profession most esteemed for personal integrity. But there are standards of truthfulness below which we will not go. It's interesting to me that you are proposing to go below that standard. You haven't acted yet, but even to propose is something you'd never see from anyone in the profession.

So I am just struck by your willingness to rely on an obsolete source, when you know that it's been superseded by a later edition that cuts squarely against you, and your brazen statement that to do so "is the point." It's interesting to observe your judgement about legal topics, your standard for truthfulness, to see an approach that's so far out of the mainstream, and your persistence in an area where you are so obviously uninformed.

I trust that this is sufficient to end this discussion at the proposal stage, and that you will take no further action.

98.229.147.75 (talk) 11:26, 4 June 2016 (UTC)

FuriouslySerene: Is this[10] coming off the rails? Qexigator (talk) 21:38, 3 June 2016 (UTC)

• Support Qexigatorj's proposed change. —PermStrump(talk) 02:29, 5 June 2016 (UTC)

I've been away for about a week. 98.229.147.75 understands the topic and how to write about it. Qexigator does not.

Of all the discussion above, the one that should begin and end the discussion is the current edition of Blacks's, which gives as first definition "1. The body of law derived from judicial decisions... CASELAW" The system takes its name from the case law sense of the term, not the other way 'round. Qexigator's proposal removes the FIRST defintion from the lead entirely -- that's nonsense.

As a practicing lawyer, I state my unequivocal view that Qexigator's proposal is a big step backwards. Not quite vandalism, but close.

Before this goes any further, could Qexigator, FuriouslySerene, and Permstrump identify any jurisdiction in which they're licensed to practice, or identify any other basis of expertise? I'm admitted in New York, Massachusetts, the U.S. Supreme Court, two of the federal Courts of Appeals, and one federal agency. It doesn't make me necessarily right, but it does indicate that I have some experience with the subject and knowledge of how the term is actually used.

204.9.220.36 (talk) 21:08, 6 June 2016 (UTC)

Overlinking in lead

Case law and precedent both redirect to the same page, so IMHO it's confusing that the parenthetical citation in the opening of the lead has a wikilink on both terms: Common law (also known as case law or precedent) is law... Readers who aren't familiar with editing wikipedia will probably think there was a mistake and that there must be a separate article on case law out there, but they just can't figure out how to get there. I removed the links the other day, but someone put them back. Besides the reason I just explained, I also removed them because (a) MOS:LINK says not to link the boldface words in the opening sentence of the lead and (b) later on in that same sentence there's a wikilink on "precedential", which also redirects to the "Precedent" article and (c) I don't like the way it looks. :) MOS aside, it doesn't really make sense to say, "Common law (aka precedent)" and link to another article, because if "common law" is synonymous with "precedent", then I should already be on the right page to read about precedents. If "precedent" has multiple meanings and the "precedent" in the other article doesn't share exactly the same meaning as the "precedent" that's synonymous with "common law", then again, it doesn't make sense to wiklink it in that context, because the other page would be talking about something slightly different. In any case, people can click the link a little later on in the sentence if they're dying to read about precedents. Also, if they really are synonymous, should there be 2 articles? —PermStrump(talk) 21:42, 3 June 2016 (UTC)

Interesting set of observations. Thanks.

"Common law" has multiple definitions, the most important one of which is synonymous with "case law." So the two articles do have a significant overlap. But they're also very different. One is cause, the other is effect. One is the atomic phenomenon, the other is the emergent property. "Common law" has additional meanings (though less important) that are not synonyms for "case law." So they are certainly two separate articles. The relationship between "common law" and "case law" is such that they should not be the same article (especially since they're both already so large), but so close that it violates common sense and the whole purpose of linking not to link them.

"Case law" and "precedent" are synonyms in some senses, and not in others, but the concepts are so closely linked that it makes no sense to split them -- you can't understand one without understanding the other. They are not the same, but the relationship between the two is totally hand-and-glove. (They used to be two separate articles -- so the concepts are separate -- but the two were nearly perfectly redundant in content, it became clear that keeping them separate was creating a host of problems, and led to confusion and lack of clarity. So they were merged years ago.) Both has senses in which they are synonyms for "common law."

So there's the background that sets up the logical relationships that should be clear to readers. Now let's look at your question. In MOS:LINK, are you referring to this sentence? (italics added):

Links should not be placed in the boldface reiteration of the title in the opening sentence of a lead.

(footnote explaining the main text--not the main text itself) Many, but not all, articles repeat the article title in bold face in the first line of the article. Linking the article to itself produces boldface text; this practice is discouraged as page moves will result in a useless circular link through a redirect. Linking part of the bolded text is also discouraged because it changes the visual effect of bolding; some readers will miss the visual cue which is the purpose of using bold face in the first place.

This is a much-more-nuanced sentence than "not to link the boldface words in the opening sentence of the lead" -- MOS:LINK says not to link the reiteration of the title (that is, MOS:LINK says don't link the first two words of the article "common law") to itself. As I read it, this sentence of MOS:LINK doesn't say anything about linking or not linking other bold words in the first sentence that come after the "reiteration of the title," especially where the link is not to itself.

Do you read MOS:LINK the same way I do?

By the way, as one who trained first as an engineer (and thus eminently practical), and now practicing as a lawyer for decades (so my writing is my most important tool -- first and last, it has to communicate meaning) my feeling is that perhaps "I don't like the way it looks" and any pedantic concerns for style and appearance should be subrogated to clarity? In my world, no one would ever, ever, ever advocate "style" if it compromised meaning and clarity. That is, if MOS:LINK discourages this linking, then I would suggest that MOS:LINK needs to be refined slightly. (Interestingly, this article -- common law -- is about the process of recognizing that when the "rules" don't give the "right" results, judges change the rules. Maybe that's what should happen here.)

Of course any alternative suggestion would be welcome.

98.229.147.75 (talk) 01:31, 4 June 2016 (UTC)

MOS:BOLDSYN Same applies to synonyms. The boldface words are supposed to redirect to the same article. Since they don't in this case and since they're closely related, but none synonyms, they should not be in bold. "Also known as" should probably be changed to "Closely related to." —PermStrump(talk) 17:29, 4 June 2016 (UTC)

I'm not sure that this responds to my question or addresses the facts I laid out, nor does it address the limitation of MOS:LINK that confine applicability to only "reiteration of the title." Because I slightly misstated my question, I don't think the answer applies accurately to these facts. I slightly rewrote my question to you to be a bit more accurate and to try to focus more precisely.

But lets leave that aside, and solve the problem as you perceive it. What would you suggest?

98.229.147.75 (talk) 18:02, 4 June 2016 (UTC)

If that's your view, PermStrump, may we take it that you support proposed version P above? Qexigator (talk) 22:12, 3 June 2016 (UTC)

Qexigator, The logical connection between linking and not linking, vs entirely different sentences is -- what? 98.229.147.75 (talk) 01:31, 4 June 2016 (UTC)

@Qexigator:: Yes, I agree with your proposal and will comment above. @98.229.147.75: I think it was a logical connection for Qexigator to make, considering my second comment says, "since they're closely related, but none synonyms, they should not be in bold." This seems like a situation where a hat note might be appropriate. e.g.,

See also: Case law

Boldface is supposed to be reserved for the title and one or two alternative titles (if applicable). As alternative titles, the words in bold are supposed to be made to redirect to the current article, so the bold words should be an iteration of the title and wikilinking them would be redundant as it would bring the reader back to the same article they were already on. If it brings them to a different article, then those words should not be in bold because they're not alternative titles for this article. —PermStrump(talk) 02:26, 5 June 2016 (UTC)

So it seems that unbolding "case law" and "precedent" is the right thing? Which I have implemented.

A "see also" doesn't communicate the full import. The lead dictionary in the field -- the current edition of Black's -- gives CASELAW as a synonym for the first definition. Another important dictionary is Garner's Dictionary of Legal Usage, which states “most commonly within Anglo-American jurisdictions, common law" has the sense of being "law" rather than a "system." So "case law" isn't just a "See also," in the lead, primary, most-common sense, it's a synonym. The article loses a lot if it doesn't communicate that -- indeed, that refusal to accept the synonymous nature of the two terms is what's giving FuriouslySerene and Qexigator such heartburn. I really don't understand the positions those two take throughout this Talk page -- it's there in all the modern specialist dictionaries. Why the reluctance to accept that that's what the word means?

204.9.220.36 (talk) 21:11, 6 June 2016 (UTC)