24/7 call for a free consultation 212-300-5196




When you’re facing a federal issue, you need an attorney whose going to be available 24/7 to help you get the results and outcome you need. The value of working with the Spodek Law Group is that we treat each and every client like a member of our family.

Client Testimonials



The BEST LAWYER ANYONE COULD ASK FOR!!! Todd changed our lives! He’s not JUST a lawyer representing us for a case. Todd and his office have become Family. When we entered his office in August of 2022, we entered with such anxiety, uncertainty, and so much stress. Honestly we were very lost. My husband and I felt alone. How could a lawyer who didn’t know us, know our family, know our background represents us, When this could change our lives for the next 5-7years that my husband was facing in Federal jail. By the time our free consultation was over with Todd, we left his office at ease. All our questions were answered and we had a sense of relief.

schedule a consultation


define the common law

March 21, 2024

Defining Common Law: A Basic Explanation for the Everyday Person

Common law can sound like legal mumbo jumbo to most folks. But at its core, it’s actually a pretty simple concept we deal with in everyday life. Let’s break it down nice and easy.

What is Common Law?

Common law is basically the body of law that comes from court decisions, not statutes or regulations. So instead of lawmakers passing bills to make new laws, judges make rulings that set precedents and add to the overall body of common law. Get it? Common because it comes from what judges usually ruled on similar cases over time, not just made up out of the blue by politicians.
Let’s take an example. Say your neighbor’s giant tree falls over in a storm and crashes onto your garage, messing up your car. You sue your neighbor for the damage their tree caused. There isn’t a specific law about neighbor’s trees causing property damage – so what does the court rely on? Common law traditions built up over centuries about one person’s property damaging another’s.
The judge looks to past similar cases where a court ruled one neighbor owed another money after their property damaged the other’s. This kind of case has come up many times before over the centuries, so there is a strong precedent for your neighbor being liable for the damage their tree caused. That’s common law in action.

Where Does Common Law Come From?

Common law originated in medieval England from the 12th century on. Back then, there weren’t democratic legislatures writing volumes of statutes like we have today. Instead, judges and legal scholars looked to tradition, reason, and past court decisions to determine the best way to rule on a case.
Centuries of judges debating, thinking critically, and ruling on cases built up a rich body of common law traditions that were recorded and could be referred back to. As British legal influence spread throughout its colonies and later the United States, this common law tradition came with it.
So while federal and state legislatures pass loads of statutes today, the common law tradition from England still forms the foundation of our legal system. Many core legal principles about contracts, torts or harms against others, property rights, and more stem directly from the common law.

How Common Law and Statutory Law Work Together

Common law and statutory law are complementary, not oppositional. In an ideal world, statutes build upon and clarify the common law foundation rather than contradicting it outright. And when the legislature is silent on an issue – like with your neighbor’s damaging tree – common law fills in the gaps.
There can be debate where statutes appear to conflict with common law. But often judges try to interpret statutes in light of common law principles rather than overriding centuries of precedent. Of course, legislatures can explicitly override common law too by passing statutes. But even then, old common law traditions might still influence judicial rulings in practice.
Think of it this way – common law is like an old, enormous tree with deep roots and statutory law is like a new vine growing on that tree. The vine relies on the tree for support – it doesn’t just rip up the tree’s roots! But occasionally, the vine overtakes a weaker branch as it keeps growing. The two are intertwined while still distinct.

Torts and Contracts as Pillars of Common Law

Two of the main pillars of common law deal with private disputes between individuals: torts and contracts. These doctrines have been built up over centuries of judges deciding cases between wronged parties.
Torts deal with civil wrongs not arising from a contract. Say you are hurt in a car accident that was someone else’s fault. You could sue under tort law theories like negligence or recklessness. The common law spells out various standards someone must violate – like the reasonable duty of care while driving – to constitute a tort. Damages try to make you “whole again” under common law guidance.
Contract law deals with agreements between parties – say to provide goods or services for an agreed upon price. The common law sets out basic contract formation principles about offer, acceptance and consideration. Other doctrines deal with interpreting agreements, allowable remedies under a contract, and so forth. So if you pay a contractor to build a new porch and they do shoddy work, common law contract principles come into play.

Property Law Traditions

Property law is also largely the domain of common law. Basic trespass laws come from common law tradition – like that neighbor damaging your garage with their fallen tree. Nuisance and zoning laws also come from common law judging the appropriate use of property. Adverse possession rules – like if a neighbor encroaches 10 feet into your yard over time, when do they just gain that land by using it openly? That comes from common law too.
In the American colonies and early United States, common law property traditions upheld the sanctity of private property and contracts to encourage economic exchange and protect landowners. But common law doctrines also restrain property use at times to balance competing rights. Like you can’t erect a giant noisy factory right next to a quiet neighborhood – that judge made nuisance precedent limits use.

Interpreting Common Law Today

So how do judges interpret common law in the 21st century? Well, first they look to binding precedents in their jurisdiction – past cases their court must follow. If another court’s past ruling sets clear binding precedent, a judge today usually can’t ignore that. But if past precedent doesn’t perfectly match or is outdated, judges can distinguish the case and make a new precedent within reason.
For example, say 100 years ago a court ruled cars didn’t need seatbelts under common law negligence standards. But car safety technology has greatly advanced since then – so a judge today could override that old precedent by saying cars now do need seatbelts to meet reasonable duty of care minimums. But judges won’t override old precedent lightly – they give great weight to prior common law rulings.
Judges also reason by analogy from prior cases. And they aim to rule consistently with the principles and traditions of the common law they inherited. It’s not just making up law randomly – it’s deeply rooted in precedent and legal philosophy. Continuity and incremental change, not judicial activism, is the goal.

The Constitution and Common Law

The U.S. Constitution also interacts with and overrides common law at times. Like common law said criminal convictions required a unanimous jury – but then the Constitution made clear the federal standard is a 12 person jury only needing consensus from 10 to convict. So constitutional criminal procedure principles trump common law.
The Bill of Rights also placed common law principles like property rights, trial by jury, and restrictions on excessive bail in the Constitution to better protect them from government infringement. So the framers saw constitutional law and common law as closely linked – not antagonistic.
And remember, before all the federal statutes and regulations today – state common law governed most legal issues people faced in early America. Property, contracts, family arrangements, injuries – the common law ruled. And state courts oversaw most cases – so common law mattered most to typical people’s lives. The Constitution set a broad governing framework, while common law filled in the details.

The Code of Federal Regulations vs. Common Law

Today we have a third major source of law as well – administrative rules and regulations. The executive branch creates reams of regulations interpreting Congressional statutes in areas like environmental law, workplace rules, banking standards, and more. This Code of Federal Regulations has over 200 volumes detailing federal admin rules!
These regulations don’t always perfectly align with common law interpretations that judges have developed over the centuries. Sometimes regulators explicitly override common law to achieve policy goals with strict uniform national standards. But regulations still can’t exceed the scope of authority statutes give agencies either. So there is lots of interplay between regulations and common law.
Say the EPA issues strict wetlands protection regulations that impact private property rights beyond traditional common law nuisance standards. That may be challenged in court. Or banking regulators may allow creative financing arrangements that seem to flout old common law limits on what constitutes legitimate lending. Sometimes the old and new clash and judges then have to decide what controls today.

The Future of Common Law

Despite hundreds of years of development, common law remains a vibrant and essential part of our legal system – it’s not just a relic of medieval England. Tort law, contracts, property, and key aspects of criminal procedure all still stem directly from common law judging. So do doctrines of equity, probate and trusts, agency law, and more.
Sure, federal and state statutes now often override or clarify common law doctrine. But judges continue incrementally adapting and adding precedents to the common law foundation. And legislators think twice before upending centuries old common law traditions which the public expects to endure. So while constantly evolving, the common law’s roots run deep.
Next time you think about complex modern legal issues like internet privacy rights, corporate criminal liability, or consumer protection in the digital age – remember they all connect back to early common law judging protecting people’s property and promises. Our innovative 21st century laws stand on the shoulders of 800 years of common law precedent. The common law tradition remains at the heart of Anglo-American jurisprudence today.

Lawyers You Can Trust

Todd Spodek

Founding Partner

view profile



view profile


Associate Attorney

view profile



view profile



view profile



view profile



view profile

Criminal Defense Lawyers Trusted By the Media

schedule a consultation
Schedule Your Consultation Now