What are some new examples of judge made law? What are some recent examples of judge made law? (On both the criminal and civil side.) I am not looking for interpretations in long standing common law. I am looking for development of a new principle, prohibition, theory of liability, ect. invented by a judge on the basis of reason, equity, analogy ect (perhaps to meet a new circumstance or development). Am am also not looking for new interpretaions of statutes, but purely for judge made law.
I am using 1960s and later as a cutoff for &quot;new&quot; in the absence of other clear guidance in the question (keep in mind that the common law goes back to before the 1600s in many cases). I'm also treating a judge made law innovation as &quot;new&quot; even if it was present in a handful of outlier cases in a handful of jurisdictions but was not widely used and widely adopted until much later. A few that come to mind are: The direct strict liability for defective products in torts originated in California in the 1960s. The market share method of allocating damages for product liability in class action lawsuits when the exact manufacturer could not easily be determined because multiple manufacturers made the same defective product is a fairly recent innovation. The widespread adoption of the common law implied duty of good faith and fair dealing in cases not governed by the Uniform Commercial Code is more recent than that. The common law practice of treating installment land contracts upon which many payments have been made as mortgages under a lien theory is relatively recent. The generalized and widespread adoption of unjust enrichment as a cause of action is a late 20th century judicial innovation. The concept of a trust protector for express trusts is relatively recent (maybe seeing widespread adoption in the 1980s). The outrageous conduct/intentional infliction of emotional distress tort is relatively recent (probably seeing wide use around the 1970s or 1980s). The negligent misrepresentation tort is relatively recent. the injurious falsehood tort (imposing fraud liability when fraud directed at a third-party harms the person seeking relief) The intentional interference with contractual rights/business opportunity tort is relatively recent, at least in wide application. Palimony causes of action. Enforcement of domestic partnership agreements (previously disallowed as a matter of public policy). The use of the contempt of court power to enforce unpaid child support and alimony judgments. The erosion (but not complete abolition) of common law authority for someone to make decision for spouses and children as a &quot;natural guardian&quot; in the absence of a court order or written instrument. The demise of college and university in loco parentis authority over college students. The demise of the common law defense to assault for a husband's &quot;reasonable&quot; discipline of his wife. The demise of marital tort immunities in many states (in other states this was statutory). The demise of the heart balm torts in states where they were not abolished by statute. The common law choice of law rules were revolutionized between roughly the 1960s and 1980s with the &quot;most significant relationship&quot; test largely replacing rigid black and white rules. The tender year's doctrine was a common law innovation that came and went (in the face of constitutional gender equality norms that overruled it). It has been somewhat superseded by a weak primary caretaker presumption and by the concept that the best interests of the child are served by reproducing the pre-divorce/separation status quo to the extent possible. Validating shrink wrap licensing and the theories of contract formation that go with website terms of service are fairly recent common law innovations. Various common law legal theories of relief for revenge porn are quite recent. This is a currently developing area of the common law. Some innovations that started with common law decisions were later widely codified: Putative marriage was a common law innovation before it was codified. Time shares were a common law innovation before they were regulated on a statutory basis. The concept of quasi-community property was a fairly recent innovation that was a common law concept before it was statutory. The concept of derivatives is largely a common law innovation. The common law reporter's privilege, in places where it does not arise from a shield law, dates mostly from the 1970s. Implied warranties of habitability for residential real estate were originally a common law innovation although they have been codified in many jurisdictions now. Limitations on the duration, allowability, and scope of non-competition agreements (some of which remains common law and some of which is now statutory). It is somewhat hard to stick to the question's limitation on &quot;not looking for new interpretations of statutes, but purely for judge made law&quot; because lots of constitutional law and civil procedure, for example, have a very thin statute-like touchstone but have predominantly been a matter of judicial innovation. These include: The demise of notice pleading in the federal courts after decades without significant case law change and no new statutory language. The dramatic narrowing of &quot;general jurisdiction&quot; after decades without significant case law change and no new statutory language. The creation of the &quot;qualified immunity&quot; doctrine in civil rights cases. The creation and then limitations of the Bivens remedy for civil rights violations by federal officials no spurred by new statutory language. The &quot;fraud on the market&quot; theory of securities fraud liability. The concept of insider trading. The definition of &quot;security&quot; in the case of investment contracts. The narrowing of defamation law in multiple respects. The Miranda rule. Case law regarding reasonable expectations of privacy under the 4th Amendment in light of new technologies (infrared, drones, DNA testing, etc.) The &quot;major questions doctrine&quot; for judicial review of administrative action on constitutional grounds. The development of sexual harassment claims from statutes prohibiting discrimination on the basis of sex. The application of existing statutes and constitutional provisions to LGBT rights with no new statutory language. The determination that juvenile life without parole violates the 8th Amendment. The determination that the Second Amendment creates an individual right and that this right is applicable against state and local governments and not just the federal government. The determination that the 6th Amendment allows for non-unanimous criminal case juries followed by a determination decades later that it does not allow for non-unanimous criminal case juries based upon the experience of Louisiana and Oregon that used those options. The jurisdictional issues of when a state can impose sales taxes on mail order purchases (which involved a double flip of authority at the U.S. Supreme Court level).
Yes, such a scenario is plausible, and there are some cases where it has probably happened. But since juries do not normally give reasons for their votes, it is hard to establish when it has and when it has not happened, and I have seen no statistics on such occurrences. By the way, &quot;Jury Nullification&quot; is simply when one or more jury members vote in a particular way because of something other than the law and evidence as presented in the trial. Most often the term is used when a jury votes to acquit because they dislike or disapprove of the law involved. For example, in the 1850s a number of people accused of violating the US Fugitive Slave Law by harboring runaway slaves were acquitted, reputedly because juries who disliked the law (quite unpopular in many northern states) no matter what the evidence. Later, during Prohibition, some people charged with possessing or selling alcohol were acquitted, reputedly by juries who disapproved of Prohibition. In both cases, it is hard to get authoritative sources that specific cases were actual instances of jury nullification. Anyway, a juror need not &quot;ask&quot; for jury nullification, that juror just votes to acquit. A jury that votes to acquit (or convict) because of political or personal views about the accused might be said to be &quot;biased&quot; but I am not sure if that would be described as &quot;jury nullification&quot;.
Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare
Judges simply do not supervise each other in a courtroom in terms of keeping each other "honest." That's simply not how the courts work. Judges are independent in order to not be influenced by bias. A judge would look very unkindly upon a lawyer who requested another judge be in the courtroom in an extra-judicial sense, or in some sort of legal sense as (wrongly) perceived by the lawyer. A lawyer is an officer of the court, and as such, knows what is legal in an administrative sense, and would simply not request another judge be in the courtroom. A lawyer can request a different judge be assigned or take over a case, but the request must generally have a legitimate reason that has a legal basis, i.e., a documented conflict of interest on the part of the judge, or evidence of racial bias. And it is up to the court to grant a change. Yes, judges have been found to be corrupt and have been removed from the bench. But that doesn't happen very often, and that removal is part of the judicial process to keep judges honest and get rid of "bad" judges. Yes, judges do issue rulings that are struck down on appeal; that's why there is an appeal process. That is the legal mechanism to keep judges "honest." So, the remedy for what is perceived as an unfair judge or a biased ruling is an appeal to a higher court.
Negligent patent infringement is — obviously — not a criminal matter, and will only become one of civil nature if a proper patent infringement notice, pursuant to 35 U.S. Code § 287(b)(2), et seq., is duly served on the infringer, and the infringement continues thereafter. (Although even in the absence of it is not legal, but no action is enforceable without) Therefore, as a practical matter, they couldn't — unless one continues with infringing conduct duly served proper notice on unless the infringement is done knowingly and willfully. Additionally, &quot;non-obvious&quot; is a term of art; its case-law description gives broad discretion to patent examiners, supervisory patent examiners, the PTAB as well as the Federal Circuit and the U.S. Supreme Court — as the case stands — to decide what is &quot;obvious&quot; and what isn't. For example, there is no case law defined upper limit of how many piece of prior art may be considered together when arguing they, combined, would make a system, method or computer program product obvious. The limitations on this generally require, for e.g, that the combination have an objective; in the absence thereof, an applicant may argue that it would not have been obvious. Lastly, it is not everywhere where there is no exception for private use; the U.S. has no such exception though.
The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact.
There is no one answer, but here are some examples. India is famous for deriving general principles of more important constitutional law concepts that can be used to find constitutional amendments to be unconstitutional. The U.S. has not gone to that extreme but does derive constitutional protections for the overall scheme of the constitution and from the legal context of the nation when constitutional provisions were enacted that don't obvious flow from the text of the legislation (e.g. the 11th Amendment to the U.S. Constitution) has been interpreted to establish state sovereign immunity that the text of that amendment does not expressly provide for). Another somewhat weird source of law in the U.S. (constitutional at the federal level and usually common law at the state level) is that the 21st century right to a jury trial in a civil case depends upon whether the claim would have been litigated in England in 1789 in the courts of law or the courts of chancery in England. Customary international law is a thing. It also often arises from international practices or diplomatic norms, rather than tribunal adjudications. In the jurisprudence of the legislative process and some aspects of federalism, historical practices that have not been litigated are frequently resorted to as a source of law. For example, the question of whether a legislature is in recess has been resolved based upon historical practice. Prior to the French Revolution, customary practice was an important source of law in France. Customary practice was an important source of the English common law. In many British colonies and former British colonies (e.g. South Africa and Kenya and Sudan), lower tribal or village courts were often expressly permitted to apply local custom in their decision making. In the U.S., a collection of secondary authority texts compiled by the American Law Institute, an affiliate of the American Bar Association, called the Restatements, which summarize in codified form, various subjects in common law, are often used by courts as a source of law where there is no case law on point in a jurisdiction. In civil law countries, the leading legal treatises of law professors are an important source of interpretive authority of the civil code and other major codification of the law. Most Islamic countries provide in their constitutions that Islamic law is the highest authority and supersedes any secular law including other provisions of the constitution to the contrary. In many parts of the United States, mostly in the west, but also in Florida and Louisiana, property rights arising under Spanish/Mexican law, or under Native American law continue in force even though they derived from legal systems other than U.S. statutes and common law. See, for example: Tribe: We have &quot;aboriginal title&quot; to these lands in New Mexico because we had exclusive occupation of them from around 1300 to 1650, and then still used them a lot since then. Further, the &quot;sovereign&quot; (the U.S.) has never properly taken them away, so they're still ours. District court: No. Tribe on motion to reconsider: How about just these bits of the lands? District court: Still no. Tenth Circuit: There's still a claim for one of the bits. Concurrence 1: No bits for you. Concurrence 2: Two bits. (Source)
First, civil law has, confusingly, two meanings. It can denote the legal systems used in most of Europe, as opposed to the common-law systems arising in England and spreading to most of the former British empire. In the US, and in other common-law jurisdictions, civil law is pretty much everything other than criminal law. Given the tagging of the question, this seems to be the sense that you have in mind. What is tort law and how does it differ from civil law? Is there any difference or overlap between the two? Does one more broadly encompass the other? Tort law is a subset of civil law. Are torts defined in statute? Some are; some aren't. There is a common-law doctrine of torts. These torts have been defined by the courts through judicial precedent rather than by the legislature through statute law. They are therefore known as &quot;common law torts.&quot; Some jurisdictions have abolished these torts and replaced them with torts defined by statute. or do they exist alongside statute in some way more fundamentally and less ephemerally than statutes exist? Statutorily defined torts are rather less ephemeral than common-law torts, not more. What is a “common law tort “? See above.