Terms Related to Common Law and Equity: Origins and Development Flashcards
Common Law
Common law is a body of principles and rules of action which derive power solely from customary usage through history or from judicial decisions. Common law is distinct from statutory law.
Common Law Action
An action at common law is one which will lie without a governing statute.
Forms of Action
Forms of action” were the procedural devices used at common law to give meaning to the theories of liability which the common law recognized. According to the type of relief sought, actions were strictly divided into discrete categories. Failure to properly analyze the cause of action and select the appropriate theory of liability or procedural form of action may have resulted in being thrown out of court all together.
Forms of Action compared to civil action
Modernly, under the Rules of Civil Procedure either at the state or federal level, there is only one form of action, the “civil action” for all theories of liability.
English Common Law
English common law is the ancient, unwritten law of England.
Federal Common Law
Federal common law is law which is based on federal court decisions. Its application is limited by the Erie Doctrine.
Erie Doctrine
The Erie Doctrine is a legal doctrine derived from a case by the same name which states that, except for cases governed by the federal constitution, U.S. treaties, or federal statutory law, federal courts must apply state substantive law and federal procedural law in cases decided by the federal courts.
Equity
Equity is a form of justice administered according to precepts of fairness. Equity denotes a spirit of doing justice between parties according to what is fair under all circumstances in a particular case.
Equity Contrasted with Common Law
Equity principles developed in England as a response to the perceived unfair harshness which common law rules rigidly imposed upon parties to an action.
Merger of Law and Equity
Modernly, federal courts and most state courts have merged the procedural aspects of law and equity under the term “civil suit.” Substantive concepts of equity and law still exist separately today.
