Question about American legal system

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mountainhare

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In Australia, our courts can make new laws 'common law' through precedent. In fact, our area of law regarding torts and negligence were created via common law.

Can your courts in America make common law, or are they restricted to entirely judicial functions? What about interpreting the law?
 
mountainhare did you know that the high court can use as precedent decisions made in english or NZ courts?
 
In the United States, law is enacted by elected officials be they city, county, state or national. If a law is challanged by someone charged with violating it, it can go through the court system and eventually the US Supreme Court.

Elective legislatures are charged with developing the laws. Elected executives are charged with enacting or vetoing the legislation creating the law by signature. Judges, some elected and some not depending on jurisdiction, are charged with intrepreting the law.

The US legal system is based on English common law philosophically, but the administration is different. The foundation is our Constitution which assigns the areas and limits of responsibility in the creation of our laws.

Our courts, especially at the federal level, are divided between "activists" and "strict constructionists". Activists are accused of "making new law" by intrepreting laws as extending into areas not otherwise originally intended. Strict constructionists attempt to abide by the letter and original intent of law based on the Constitution. In short, this constant tug-of-war makes the legal system in America a living, adapting entity.

No American judge at any level has the authority to author "common" law as in Australia.
 
Asguard said:
mountainhare did you know that the high court can use as precedent decisions made in english or NZ courts?
Click to expand...

Yes. But they are used as persuasive precedent, not binding precedent. :)
 
US Judges make law all the time. The most contentious issues of the last 30 years--abortion, most of affirmative action, gay marriage, the purging of religion from the public square--have been decided not by elected representatives but by unelected Federal judges.

In San Diego, a Federal judge ruled that the Boy Scouts of America is a religious organization and therefore, under the 1st amendment, cannot lease land in Balboa Park.

The voters had no problem with the lease. The city had no problem. The BSA began leasing and taking care of a section of the park during WWII. No one was excluded from that area.
The Scouts spent quite a bit of time cleaning and improving the area.

Then, out of nowhere, one judge ended it all.

Even worse, a Federal judge in Kansas city raised property taxes--a power reserved to the legislature. He didn't like the fact that whites were moving to the suburbs and inner cities schools were majority Africa American. So he decided the city had to spend millions building "magnet" schools to attract whites back into the city. One HS even had an Olympic swimming pool.

Of course it was all a failure. Voters never would have voted for it. But not they are still paying the bill.

New book is out on the subject of judicial tyranny: "Men in Black" by Mark Levin. It is a chilling read.

The future is grim unless these judges are stopped.
 
....oh and yeah...

The commonwealth of Australia is a fine example to the world of new aged democracy.
We have a strong diciplanary system that still allows for human error, compared to the US, where it would seem that they have a more police regime rather than a police sector.

God bless the beautiful, golden nature of Australia, our " Heaven on Earth ".
 
mountainhare said:
In Australia, our courts can make new laws 'common law' through precedent. In fact, our area of law regarding torts and negligence were created via common law.

Can your courts in America make common law, or are they restricted to entirely judicial functions? What about interpreting the law?
Click to expand...

The judiciary may not legislate. The courts may only apply and interpret the law. Legal precedent involves a high court applying existing statute to a circumstance it did not originally cover but which the court holds it would have covered if the statutes authors had forseen said circumstance, and is the closest thing the American court system has to so-called "judicial legislation." I imagine it is the same in Australia and you're confused, as all Western judicial systems are based on the "common law" ethical philosophies of English origin. It is an elementary conflict of interests and inherently anti-democratic to allow the courts to write the law.
 
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