What is the common law?
Common law generally refers to a type of law that is established through court precedents rather than written statutes or regulations. It has its origins in the early years of England when barons and magistrates would decide cases and cite to legal precedents in order to justify their decisions. Overtime, common law moved to the American colonies and eventually spread to many states. Under the United States Constitution, federal law and state law are always supreme over prior court decisions. However, in order to protect the doctrine of stare decisis, a general rule of law that requires lower courts to adhere to the precedent set by higher courts, federal and statutory law are sometimes interpreted differently in order to follow common law.
In Oregon, common law is part of the statutory law defined under ORS 174.010. ORS 174 . 010 gives three different definitions of law, one of which is common law as it relates to the state of Oregon: (4) "Law" means the collection of rules, usages, and customs, however written or unwritten, declaring the principles of action for the government of the people, of the state and its agencies and subdivisions, and all of the administrative rules, regulations and interpretations adopted pursuant to the Administrative Procedure Act, and by which the people shall have the right to be secure in their persons, houses, papers and effects against unreasonable search, seizure, or privacy or unlawful invasion of personal rights, and from all deprivation of their inalienable right to life, liberty and the pursuit of happiness.
Common law as established in the United States refers to the following: the body of legal rules and interpretations that derive their authority from accepted, uniformly applied customs and nature of society the operation of a legal system that requires judges to decide cases based on previously established legal rules and principles the common law of England, interpreted and applied by courts in the United States.
The judiciary in the United States has a considerable amount of power and discretion. Because of the influence of the common law in the United States, its courts have the ability to set precedent that other courts are obligated to follow. This has the practical effect of allowing the judiciary the ability to create law without the input of the legislature or executive branches of government.
Oregon’s Common Law Marriage
Common law marriage is a topic that nearly everyone has heard of, but most know very little about. Common law marriage is a form of marriage that can occur when particular requirements are met. For example, in states that recognize common law marriage, individuals may be "married" if they’ve lived together for a certain period of time, held themselves out as though they’re married and met other requirements. However, it’s not recognized by every state. Each state is free to recognize common law marriage or not, and some states have repealed their common law marriage recognition.
Individuals often come to our office with varying levels of knowledge about common law marriage. Some know little more than the name; others believe they have a common law marriage based on living together for a while. Shortly, however, the effect of a common law marriage is the same as a certificate marriage. The only difference in practice and procedure is that a common law marriage may first require someone to establish the marriage, while certificate marriage does not. Often, it is easier to establish a certificate marriage because the parties must obtain a certificate which contains public facts about the parties’ marriage such as the date of their marriage and the purpose of their marriage. A common law marriage requires someone to prove the marriage which also produces a public record, the actual marriage ceremony and date may or may not have been memorialized.
Oregon does not recognize common law marriage. However, Oregon will recognize common law marriages from other states. If an Oregon court is faced with a common law marriage from another state, Oregon law (specifically ORS 106.040) instructs the court to apply the law of the common law marriage state to determine whether the couple was actually married under that state’s laws.
If you and your partner have just moved to Oregon or have recently gotten married in another state and have questions about the validity of your marriage, speak to a knowledgeable family lawyer at a family law firm.
Statutory Law vs Common Law in Oregon
The common law and statutory law coexist as a means of determining the issues in a legal proceeding. The common law, sometimes referred to as judge-made law, case law, or judge-made law, encompasses the legal principles that come from judicial opinions and interpretations, which originated in English law and were adopted in the United States based on precedent.
Statutory law is the body of law that comes from statutes, such as legislative deliberations and the subsequent enactment of legislation, which brings forward modern ideas in law. Statutes are the result of legislative debate wherein an issue is debated, amended, and then put to vote. Once legislation has been passed, however, it requires an interpretation, which is provided by the courts. Therefore, the common law evolves both by judicial opinions of the courts as well as interpretations of statutory law.
In Oregon, we often refer to the statutory law as "codified law." This is because the body of statutory law in Oregon can be found at Oregon Revised Statute (ORS) sections. ORS sections are where the law is codified into a code under appropriate headings, such as civil procedure, criminal code, contracts, etc. Again, the common law, and even the statutory law, will have to be interpreted, and it is through case law, the decisions of appellate court judges, that we interpret statutes and resolve issues in legal proceedings.
Common Law and Property Rights
The impact of common law on property rights in Oregon is significant, as it serves as the foundation for many of the laws pertaining to the use and ownership of property in the state. Common law principles have shaped the way property rights are created, transferred and enforced, and have influenced the decisions of courts in a variety of property-related cases. One particularly noteworthy case that highlights the impact of common law on property rights is Browe v. State. In this 1966 case, the plaintiff claimed that the state had taken his property without providing just compensation, and that the common law of Oregon at the time provided for a set amount of compensation in such a scenario. The court ultimately ruled in favor of the defendant, identifying ambiguities in the arguments and stating that "the Constitution and statutes set the method of compensation , and the common law of this state supplies the measure of damages." There are also many examples of specific common law decisions that have had a direct effect on property rights in Oregon. For instance, in the case of Oregon Sand & Gravel Co. v. Washougal River Power Co., the Court of Appeals of Oregon cited a common law ruling in which it was stated that "each riparian landowner holds a right to use the water in his immediate vicinity suitable for the natural wants of himself and family" (Amiotte v. Portland Gen. El. Co., 163 Or. 453, 458-60, 98 P.2d 1043 (1940)). The impact of common law on property rights in Oregon is impossible to understate. It has formed the basis of many laws and legal decisions that have affected the way property rights are treated today, and it is even cited in legal arguments in modern property dispute cases.
Common Law and Family Law
Common law systems of jurisprudence are essentially body of written rules that have come to be used by the courts as a result of the decisions of judges in previous cases. These sets of written rules then become precedents in later courtrooms. This practice of following precedents is known as following the common law. Common law principles are often what is used in making constitutional judgments. In divorce and custody disputes, common law becomes very important when legislative bodies do not give us clear rules to abide by. A good example of this can be found in the case of Ofsthun v. Ofsthun. In that case, the Supreme Court of Oregon overturned 7 years of precedent of itself in regard to alimony awards. In that decision, the Court gave examples of factors that could be used in alimony awards and gave judges more discretion in awarding alimony awards. At first, the court decided on a three prong statute (O.R.S. Family Law 107.105(1)(d)) but upon further review decided that this was too restrictive. The court then went on to use what it referred to as the "balance of equities". That means that the court periodically reviews cases and decides that certain facts should be included or not included in the decision of an alimony judgment. Prior to the Ofsthun ruling, the need award was focused on the recipient spouse’s needs and the payor spouse’s ability to pay which essentially meant and almost equal awarding of alimony. The new trend is to make asset divisions along with a needs evaluation which results in a different approach altogether in the decision of alimony. Non economic factors can now be considered.
Common Law in Oregon: Reforms and Future
Various recent reforms have targeted the common law system in Oregon, reflecting a growing public interest in updating a system viewed by some as antiquated. A forensic review of civil law reforms leads to some important questions about the future of the common law system in the state and the likely next steps for Oregon’s civil justice system.
The first wave of reform efforts ushered in an era where discovery and depositions were streamlined and limited by new Oregon Civil Discovery Rules, which required reasonable notice, reduced costs, and placed restrictions on the nature and number of interrogatories. In the spirit of the aforementioned new rules, the Oregon legislature followed up with bills limiting punitive and noneconomic damages. The passage of House Bill 2340, which established a cap on noneconomic damages at $500,000 for personal injury awards (revised to $625,000), was lauded by proponents. But several questioned whether changing the law would affect the quality of care provided by medical professionals. Despite the cap, recent reports suggest that many malpractice insurance cases are not settling.
Rory Steele, an attorney with Lane Powell, explains that, "Oregon has been willing to make some changes to recognize the pressures that affect the civil justice system." On the other hand, he acknowledges that "there is a faith of the judiciary to ‘do justice,’ can’t presume that the judiciary will apply all of the things agreed upon by the legislature."
While there has been an influx of reform recently in Oregon, there is consumption produced by a series of pushbacks against trial court rulings. One notable example is Turner v. Koppers C.P., Inc., where the Court of Appeals dismissed former Ohio Attorney General Jim Petro’s allegations of toxic contamination of the Housatonic River in Massachusetts. In a 4-3 ruling, the court agreed with the defendants’ assertion that Petro did not have standing to sue over "future injuries," or the possible injuries to a small portion of the population that may occur in the future . Justices were divided about whether to dismiss Petro’s broader claims and why Petro lacked the required standing for a lawsuit.
In an attempt to consolidate the thousands of civil claims filed in Oregon courts, the state has selected a small number of attorney-led "trial teams" to lead consolidated litigation (see our prior posts on this issue). This spending the amount of money required to defend against several thousand lawsuits, especially for less serious injuries, is widely seen among stakeholders as problematic. Many in the state are concerned that the number of cases that are consolidated is a signal that the Oregon Legislature will limit the damages that can be recovered for these less serious injuries, which could in turn provide an incentive to file more lawsuits.
As noted earlier in this post, Oregon stood out among states in its adoption of the Model Uniform Pretrial Process Act. Yet, this will only take effect after the legislature amends their respective statutory laws. Steele emphasizes that the changes with respect to MMA and the medical malpractice system have given the trial bar more time to "make the changes that will protect Oregonians from preventable errors." Steele sees the potential for further reform in the area of presumptions for loss of consortium claims, which are looking likely to be pushed back until 2017.
Although there is a general consensus around the need for further reform, no one wants to make speculative predictions about the final outcomes of the change process. The state of Oregon may still find it difficult to pass further reform, especially if opponents are successful in the formulation of opposition coalitions. However, opportunities for meaningful reform efforts should not be understated, especially in light of the state legislature’s continued support for efforts to reduce costs of litigation.