美国律师之美国法律中的普通法（American common law）

The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder and general search warrants.

美国以及大多数英联邦国家均为英国法律中普通法传统的继承者。不过，英国普通法中的一些传统司法实践已被美国宪法明令废止，例如“褫夺公民权法案”和“通用搜查令”等。

As common law courts, U.S. courts have inherited the principle of stare decisis. American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.

作为普通法法院，美国法院继承了“遵循先例（stare decisis）”原则。美国的法官，与普通法系其他地区的法官一样，不仅适用法律，他们还创造法律，不过，仅限于其所审理案件的裁决意见被用作将来案件裁决时的先例。

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague. Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carriers.

美国通过多种方式正式“接受”了英国法律的实体内容。首先，除去路易斯安那州之外，美国各州均已经制定了“接受法”，通常均会规定，只要不与州法律或者当地情况存在矛盾，英国普通法（尤其是法官创制的法律）即为该州法律。某些州的接受法设定了具体的接受时间节点，例如殖民地建立日，但其他的州对此一般均刻意模糊处理。因此，在讨论现代法律对古代法官创制的法律原则的沿革时，现在的美国法院通常会引用美国独立前的判例，例如传统上对于公共承运人施加的高度注意义务。

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples are the Statute of Frauds (still widely known in the U.S. by that name) and theStatute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.

其次，也有少量美国独立战争时期有效且比较重要的英国成文法被单独拿出来，经重新立法后转化为美国法律。有两个例子，一个是《防止欺诈法》（该名称在美国迄今仍然广为人知），另一个是《伊丽莎白十三法》（《统一反欺诈转让法》的前身）。上述两部法律迄今在美国判例中仍被经常引用，用来对美国当代法律进行解释。

Despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. Although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution precedents from England or the British Commonwealth.

Early on, American courts, even after the Revolution, often did cite contemporary English cases, because appellate decisions from many American courts were not regularly reported until the mid-19th century. Lawyers and judges used English legal materials to fill the gap.[32] Citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people. The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.[34] By 1879 one of the delegates to the California constitutional convention was already complaining: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already."[35][36]

Today, in the words of Stanford law professor Lawrence M. Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention."[37] Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.[38]