As many of my readers know, I typically refer little to laws outside of Colorado, much less outside of the United States. However, after reading several articles on England’s proposed Digital Economy Bill, I thought the proposed law was a topic that deserved mention. However, before discussing the proposed law, a brief history of how our legal system intertwines with England is in order first. Later this week, I am going to speak about the Digital Economy Bill to give a brief overview of it and my thoughts on it.
As a former English colony, the United States adopted what is known as a “common law” legal system.* Common law refers to the idea that our law is based on the prior interpretation of laws by the courts. Each judge or jury, in theory, is to look at past precedent (cases that have already been settled) and determine if it should be used in the case at hand. (See here for more on being on a jury!) Simplistically, precedent ideally is based on local law, i.e. in Colorado state courts, precedent would be the rulings that had been reached in the Colorado Court of Appeals or the Colorado Supreme Court; in Colorado federal courts, precedent would be the rulings of the 10th Circuit. In the United States, except in limited circumstances, what has been decided by the United States Supreme Court is the highest precedent for all courts.
So with that background, you are probably asking yourself, why the heck does England’s law matter here? I mean, really, we haven’t been an English colony for over 200 years. Why that is true, in order to help a court reach a decision in a case, attorneys write what are called briefs or motions – an outline of the law that applies to their case. When there is not precedent in the local jurisdiction, attorneys sometimes look to other jurisdictions or even other countries’ laws. They may also cite what other countries are doing to show a majority of countries are changing their ways on certain issues. All of this is with the hope of influencing the court to make a decision one way or the other if there isn’t in precedent (or an attorney wants the court to decide differently than precedent) regarding the matter at hand.
In addition to being used as precedent, sometimes politicians point to other countries to help strengthen their position on laws that they introduce. Although courts look to common law to interpret laws, if there is a law passed that changes common law, the new law, and not common law, is the law of the land. Therefore, even if other countries’ laws do not influence the court systems, they can influence the legislative process. (A good example of this is the current health care debate. Many politicians argue that we are one of only a few Western countries without government health care. Although this won’t influence the courts, it can potentially influence the legislative process.)
So there, in a very, very, very brief nutshell is why foreign laws can matter in the US. Stay tuned to learn a little more about the Digital Economy Bill!
* Well, most of the US. Because Louisiana is a former French colony, Louisiana uses what is called constitutional law in many instances. For a brief look at the type of law used in Louisiana, please click here.