Common Law in the United States – An Overview
Common law in the United States is a body of unwritten laws based on legal precedents set by courts. The origins of common law can be found in England, where it began as a unified body of law that was applied to judges across the country so that each ruling could be made with a certain degree of consistency.
Because the moral values in England and the United States are often the same, the body of law that is called common law in the United States today is very similar to the original English body of common law. This does not mean that all of the laws in the United States are considered to be common law; it simply means that certain laws are considered to be common law and not statutory law.
Statutory laws are written laws created by an elected legislative body such as the United States Congress or a state representative body. Statutory laws are not the same as common law, however. For example, if a common law court case establishes a certain principle , future rulings may not necessarily use the case as precedence unless future examples of the reasoning used by the common law judge determine that to be the case. Thus, a common law ruling is less binding than a statute.
Most of the laws that are put in place to protect the rights of the average citizen in the United States are statutory laws, but there are common law cases that exist in every state. Generally speaking, a court case in a state becomes case law when it has been decided and sets a legal precedent for later cases. For example, if someone stole an item and was prosecuted to the fullest extent of the law, a previous case could be pulled saying that the defendant should only be susceptible to a six-month sentence rather than a full year, even if the law says a year. If the case law had never been put in writing, it would not be known in future cases unless a defense attorney or prosecutor who had previously won a case could remember it.
Tennessee’s Legal System Explained
Tennessee has a dual legal structure, where the state’s common law continues to govern unless superseded by statute. This hybrid system results in a somewhat unique legal landscape where both case law and statutory law play significant roles in the resolution of legal issues.
The roots of Tennessee’s legal system stretch back to its early days of statehood. In 1835, the state adopted an early code of laws known as the "Code of 1835." This code was the first codification of state laws, effectively replacing the common law of the time. The Code of 1835 was updated numerous times, with new codes being adopted in 1858 and 1932.
In the latter half of the 20th century, Tennessee began adopting a more modern approach to its body of law. The state entered into numerous legal agreements with the American Law Institute to align state laws with the Uniform Commercial Code (UCC)—an agreement to streamline commercial relationships between states. Tennessee became the last state to adopt the UCC in 2001.
Now, codification in Tennessee statutes is done under the State’s codification commission, adverse to the model of 1957 under the jurisdiction of a Supreme Court committee. Historical information can be found on the website, a portion of the Tennessee state government website.
Distinct from these codifications, Tennessee also has adopted numerous uniform laws, including the Revised Uniform Unclaimed Property Act, the Uniform Interstate Family Support Act (UIFSA), and the Uniform Parentage Act. Because of the frequency of new state legislation, codification of Tennessee’s statutory law has become a near-constant undertaking.
Tennessee Common Law Marriage
Similar to many states in the U.S., Tennessee does not recognize common law marriage. In 1963, the Tennessee legislature passed a law that abolished the practice in the state (T.C.A. § 36-3-405). If you entered into a common law marriage before 1963, then common law marriage in Tennessee could still apply to you. A few people who were married in other states, which still recognize common law marriage, may be affected if they move to Tennessee with their spouse after saying "I do." In cases in which you were married in another state and are now a Tennessee resident, Tennessee chooses to honor that marriage through its "comity of nations" law (T.C.A. § 1-3-114).
Tennessee state law does not define common law marriage, but the elements for establishing this type of a legal union are well-recognized. Common law marriage exists if the parties:
- have the capacity to marry (both over the age of 18);
- have intent to enter into a marriage;
- agree to be married to one another;
- are able to contract; and
- treat each other as if they are married.
The reason it is important for married couples to know whether their union is recognized as a common law marriage is because their personal relationship may carry different consequences in the eyes of the law than those who are married through statutory marriage. This is especially true if the couple chooses to legally separate or divorce.
Interesting Common Law Cases in Tennessee
One of the most notable common law cases in Tennessee occurred in 1859, several years before the General Assembly enacted the Act. The case was State v. Iron Moulders’ & Foundry Association. It concerned whether the state had the right to tax manufacturing for state and county purposes. The court held that the state did have the right to tax manufacturing, or anything else, for the government’s necessary support. The Act changed the rule, providing that the state had no right to tax anything but the income of its "wealth," a clause that required taxation of all real and personal property. At that time, however, there was no "act providing for the manner of valuation and assessment of wealth," so the court held the legislature’s action invalid, rendering the Act ineffective to the same extent as if it had not been enacted. The State v. Iron Moulders’ & Foundry Association decision was essentially a death knell for the Act, in that the act of 1857 continued to define wealth as money and promises to pay money (but did not include provisions for valuing and assessing wealth), so the State v. Iron Moulders’ & Foundry Association decision in effect meant that there would not be any power to tax, because the legislature had failed to affect any definition of wealth other than money.
Another important case in this arena is the decision in the Coal Creek Mining Co. v. Smith et al., from 1905. The legislature had directed the Commissioner of Revenue to fix a valuation of the value of one ton of coal (on the supposition that ten tons of coal would be sufficient to run a mile or two of railroad track, and that there should be a valuation placed on it for taxation). The court declined to evaluate the coal in such a manner, holding that the court did not have the right to fix a tax that the legislature had not fixed itself. This decision clarified that the General Assembly retained the authority to determine wealth and the value of single elements of wealth.
In addition to these cases, the Supreme Court of Tennessee’s decisions have continuously reaffirmed that it is guided by "common law principles." For example, in Smith v. Jones (1970), the Supreme Court of Tennessee made clear that common law principles govern the court. It stated that was using its "inherent power and jurisdiction to declare, regulate and administer the common law of the State" and that it intended to be guided by the common law in its decisions.
Common Law and its Impact on Tennesseans
While the legal implications of living in a common law state may be relatively abstract to some, to many Tennessee residents, it can have a profound impact on their day-to-day lives. Perhaps most notably, all but four Southern states are now "elective share" states, meaning that surviving spouses in these states have a right to a percentage of their deceased partner’s estate if they did not have a prenuptial or postnuptial agreement in place upon their death. This is in addition to the one-third share of jointly-owned property typically allotted to bereaved spouses .
Common law affects our daily lives in numerous other ways. For example, most rental agreements consider the "common law week," which means from Saturday to Saturday, overruling any written contract to the contrary. The insurance industry, in the past few decades, has also moved toward a "cause in fact" test, which basically tries to determine what caused a loss, and whether or not a combination of factors should be considered when responding to insurance claims.
Common Law Compared with Other States
Tennessee’s approach to the common law is comparable to that of many other states, particularly in the Southeast. However, other jurisdictions have taken different routes and their use of the common law varies significantly from the Tennessee use.
Nearby states such as Kentucky, Georgia, North Carolina and Arkansas rely heavily on the common law. Other states like Illinois, Texas and Florida are mixed. Like Tennessee, Missouri has a parallel common law system. Many of these states’ courts; however the U.S. District Courts in Tennessee have ruled post-Dodson that they will apply the substantive common law and tort law of Tennessee in diversity cases. Conversely, Ohio, Mississippi and Louisiana subscribe to civil law.
One area of difference is in how courts view statutes and case precedent citing those statutes, with many states having a broader interpretation than Tennessee. This can affect how Tennessee businesses or individuals who conduct interstate business either in or with these other states.
For example, in Alires v. Lockhart & Seal, the Arkansas Supreme Court stated in 2006 that "if a statute is enacted which addresses a specific problem, remedies contained within the statute replace common-law remedies that would otherwise be available." id. at 470-71 (quoting Board of Trustees v. City of Little Rock, 343 Ark. 345, 351, 36 S.W.3d 286, 289 (2001)). In contrast, Tennessee courts, including the Tennessee Supreme Court, have held that the common law is only abrogated when the Tennessee General Assembly provides for it. Estate of Avery v. Anderson, 73 S.W.3d 871, 877 (Tenn. 2002).
This can create difficulties for Tennessee businesses dealing out of state in states that do not recognize that Tennessee courts will still look to the common law statutorily abrogated by other states, thereby creating inconsistencies for Tennessee residents and businesses.
Final Thoughts – The Future of Law in Tennessee
In summary, Tennessee has retained the melding of common law and civil law that formed its pre-Sewanee constitution. The state recognizes a variety of common law rules that govern many legal rights and obligations. However, Tennessee is not bound to follow English common law in every instance. It can adopt, modify or reject a common law rule at any time based on the needs of its citizens and the realities of modern day life.
Tennessee case law underscores its status as a common law jurisdiction. The rules of decision used by the Supreme Court of Tennessee show the prevalence of the common law as applied to fundamental areas such as marriage and divorce, property, and torts. A wealth of statutes in Tennessee law reflect the legislative preference to extend or modify existing common law rules in specific circumstances, such as the classification of marital property.
Speculation on future trends presents a mixed picture for common law. One likely trend is a continuing decline in reliance on common law in favor of legislative enactments. This is because the legislature sees the common law as unclear and difficult to interpret. Additionally , the courts as well as the legislature will be inclined to avoid complex common law rules in favor of straightforward statutory mandates.
In terms of reshaping Tennessee’s common law, the state may outgrow some of the archaic common law rules on the books. For example, the requirements for marriage and divorce in Tennessee, some of which trace their origins back to English common law, seem anachronistic and ripe for reform in the modern world.
It is uncertain whether Tennessee will be influenced by the emerging common law doctrines in other states. The restatement of the law as a guide to Tennessee’s application of common law appears unlikely. While these rules provide guidance, Tennessee courts are likely to continue developing their own rules step by step.
In conclusion, while common law plays a fundamental role in Tennessee’s legal system, its dominance has declined significantly. The state’s rich history intertwining common law and civil law is contrasted with a present day emphasis on legislation. While there are no signs of a wholesale shift in Tennessee’s approach to common law, the future may bring changes in its application of common law over time.