Overview of Common Law in Tennessee
Common law generally refers to the legal system made up of written opinions and case law that have been developed by judges and courts over a period of time. In the Anglo-American legal tradition to which most of the United States’ (and Tennessee’s) laws trace their roots, common law is viewed as law made up of the cumulative legal precedent of the nation. Tennessee law has developed an independent body of common law precedent that is based on shared English law sources, but has diverged from the national body of common law, especially in the last century.
In fact, some key decisions in Tennessee over the past 150 years or so have been made with specifically "Tennessee" law in mind. The court decisions that have created this body of law were not only made independently of the national body of precedent, they were also made in consideration of different social, economic and cultural factors—Tennessee is very different today than it was in the 1800s, and certainly than it was in the 1700s.
In Tennessee, this independent body of law formed throughout the 19th century , quite independently of the rest of the nation. The court decisions creating it were made in a vacuum without regard to national influences because of the lack of reliable communication between states. In addition, Tennessee was the first Western state that had a frontier portion, which resulted in Native American law and customs having a strong impact on the general body of Tennessee common law.
As other Western United States states were formed, the national influence began to increase. A body of common law was formed that continued to grow in response to the social and economic changes in the state. Because of this, a body of law that is (and that has to be treated as) distinctly Tennessee has evolved.
However, since the early 1900s, Tennessee common law has been predominated by the national common law. As times change, so do social and cultural influences, and in the best interests of the individual and the corporate citizen, some parts of the Tennessee common law have had to give way to the national common law, and vice versa.
Common Law v. Statutory Law in Tennessee
Common law and statutory law are not mutually exclusive in the state of Tennessee; rather, they work in parallel with one another in a variety of different cases. Common law is based on judicial opinions, rather than statutory laws or regulations. It encompasses the set of principles that have been developed through the rulings in Tennessee court cases and has been accepted as precedent by subsequent courts. Basically, common law is what it sounds like—the "common laws" that existed prior to the development of widespread statutory law.
Statutory law, on the other hand, is law that is based on statutes or legislative decisions. Therefore, if an issue has not been previously addressed by a Tennessee court, or if there is a dispute with a pre-existing common law opinion, sets of rules and regulations enacted by the state assembly will guide the outcome.
The Tennessee Supreme Court as well as the intermediate appellate court, the Tennessee Court of Appeals, have the authority to change the state’s common law or modify or strengthen the influence of a common law opinion if they deem it appropriate. Because this is a possibility, Tennessee common law is in constant flux and can be broken down into three categories: "controlling," "persuasive" or "no effect." Controlling authority must be followed in all appellate courts, while persuasive opinions are not required to be followed by lower courts but may be cited as precedent. Decisions with no effect are those that were rendered by other states’ highest courts and do not have a strong influence.
There are many situations where Tennessee courts are required to apply the common law. For example, the common law governs murder in Tennessee, because murder was defined before the spread of statutory law. However, if existing statutory law is not comprehensive enough to cover certain specific aspects of a case, courts often turn to common law to fill in the gaps.
For example, if a court is contemplting changing the statute of limitations in a criminal court case, there is no statewide precedent for how to accomplish this. The court can consider how other courts in the state of Tennessee have handled similar issues, but this could lead to variation in how different jurisdictions address the same situation, simply because of the absence of statutory precedent.
Common Law Marriage in Tennessee
Common law marriage is another area of Tennessee law shrouded in a veil of incorrect information and absence of details. A common law marriage is a marriage by agreement, essentially. In Tennessee, a common law couple has an agreement to be married and if a state, Tennessee no longer recognizes common law marriages. Once upon a time a Tennessee couple could enter into a common law marriage with the same legal effect of marriage as the traditional method. But, the good news is Tennessee law only permits 4 situations in which a common law marriage could exist: If a couple does not have one of these situations, a common law marriage could not exist. Of note, Tennessee does not recognize common law divorce. If a couple with a common law marriage wishes to separate or divorce, a court resolution will be required. More than likely, it will be necessary for a party to litigate in domestic court. As you are probably aware, domestic Tennessee courts do not have jurisdiction over cases unless the parties meet a residency requirement of six months. Thus, a party may have to file for divorce in a different state if a common law marriage exists and residency for six months in Tennessee is not met. It is somewhat complicated. The following are some common myths that are associated with common law marriage in Tennessee: Again, these common misconceptions are just that – myths! Now you know the truth and the law. The law does allow for a common law marriage to exist if specific conditions are satisfied, but, if the conditions are not satisfied, a common law marriage does not exist pursuant to Tennessee law.
Common Law in Relation to Tennessee Family Law
Common law significantly impacts family law proceedings across the state of Tennessee, which can have far-reaching ramifications for the divorce or custody case. Common law impacts how courts decide child-related issues, property division and other significant concerns when weighing the outcome of a Tennessee divorce, for instance. In other words, if you have been married for many years, your spouse will likely be entitled to a larger share of your assets compared to someone who has been married for a shorter term. If you and your spouse share children, the court will make a substantial decision regarding custody based on what is in the best interest of these kids.
There are elements of common law that while common are not intuitive or only seem logical after the fact. For example, many residents have experienced the benefits of common law through common law marriage. While common law marriages are not legally recognized in the South, they did offer the option to elude the lengthy divorce process through an informal legal process. However, as common law marriage was phased out in 2010, it cannot help any parties currently seeking a divorce. Some Tennessee counties appear to still recognize common law marriage, as a recent Tennessee divorce case hinged on this topic. A couple married in one of these counties enjoyed more than 30 years of common law marriage, but now they must untangle their assets and debts before moving on. The ongoing divorce case is Murphy v. Murphy.
Common law applies to all family law issues, including child custody, visitation and child support. Typically, a parent will be obligated to pay child support based on their income and the custody arrangement. Any related claims, such as dependency claims, for welfare or health coverage, could also impact child support claims. Generally, the higher earning parent will have more child support obligations. Most often, the higher earning parent will have greater custody options.
Common Law Tort Claims in Tennessee
Tennessee courts address common law torts by looking to precedential case law rather than statutes, as there are no "Tennessee tort statutes." Consequently, almost every action for injury to a person or property is covered by the Tennessee common law, which is developed and modified through the court system over time. Additionally, tort claims also exist under the statute law of Tennessee, and those must be pled distinctly from the common law claims.
Tennessee’s Constitution vests the judicial power of the state in one supreme court, intermediate courts, and such other courts as the Legislature may create. The common law of England, and the statutes of the state, together with the Constitution, constitute the law of Tennessee, absent a statute otherwise. A statute may change or abrogate the common law of Tennessee, but a common law rule cannot be altered by a constitutional provision. Legislative enactments are superior to the common law and will control over the common law in case of any conflict or inconsistency with it.
Tennessee courts have recognized significant common law tort doctrines that are applied. For example , Tennessee courts have long adhered to the doctrine of contributory negligence and also recognize the defense of "last clear chance." Tennessee courts have adopted the attractive nuisance doctrine; the economic loss and disclaimer rules; landowner liability standards for invitees, licensees, and trespassers; claims of parental liability for the actions of children; tortious interference with contract or business relationships; and the doctrine of subrogation.
Indeed, the entire doctrine of "summary judgment" has its roots in the common law. Interestingly, some forty years after the adoption of the modern summary judgment rule in Tennessee, the Tennessee Supreme Court considered an entirely different approach to summary judgment that had been adopted in North Carolina, reflecting on how Tennessee developed the summary judgment standard as an evolution of common law rather than by the enactment of a statute.
Precedent and the Common Law System in Tennessee Courts
The role of precedent in Tennessee’s judicial system, and the impact that past decisions have on future cases ought not be overlooked. Even as new laws are enacted to address modern issues, with the passage of time, their interpretation may fade from collective memory.
Such is the case of Williamson County v. Handy, Tennessee Supreme Court, 1943, 180 Tenn. 525, 176 S.W.2d 586, which is still cited today. Here the school board had no authority to issue bonds which were subject to a referendum. Although the Tennessee delimiting statute was enacted in 1957, the Handy case still stands as precedent.
Similarly a 1906 Court of Appeals case of Sanderson v. Smith, deals with discretion of the trial court in showing good cause at the hearing. This case regarding taking depositions in a case was still the law 105 years later when the Tennessee Supreme Court in the very recent case of City of Brentwood v. Metropolitan Nashville _1:09-01145 (MD TN 2015) recounted that the Williamson case stated that there is "discretion of the trial judge in requiring good cause shown to take deposition." In Tennessee, even "recent" rules of court are often based in principles established a generation, or even longer, earlier.
And so, for all lawyers, courts rulings can involve an analysis of past decisions which shape present rulings. Upon this legal foundation is built the law of the state of Tennessee.
Shortcomings and Criticism of Common Law in Tennessee
Despite its long history, common law in Tennessee is not without its critics. Challenges range from the basic concept of precedent to broader arguments about the role of common law in a modern, complex society. Lawyers and scholars alike have called for reform, arguing that the legal environment in Tennessee has evolved beyond what common law can adequately address.
One of the main challenges to common law in Tennessee is its tendency to perpetuate inequities and inconsistencies that stem from outdated precedents. Critics have argued that the reliance on precedent often results in the application of archaic standards and interpretations that do not reflect current societal norms or values. This problem is particularly acute in areas such as criminal law and individual rights, where outdated precedents can lead to unjust outcomes.
Another criticism of common law in Tennessee is the lack of predictability it can create. Since common law looks to precedents and judicial interpretations to resolve disputes, the outcome of a case can be influenced by which earlier case the court chooses as its guiding example. This can create uncertainty for individuals and businesses who are trying to gauge their legal standing in particular situations. As the Tennessee Bar Association has noted, "this allows a judge to decide on each case what the law is, rather than basing a decision on the law as it should be."
The calls for reform in Tennessee have emerged from these concerns. Some legal professionals and scholars have suggested that a codification of common law principles into statutory law would help to alleviate issues related to predictability and consistency. Others have suggested that a hybrid system, combining aspects of common law with elements of civil law, might better serve Tennesseeans in the 21st century.
Such arguments have drawn reactions from those who prefer to uphold the traditional common law system. Proponents argue that the flexibility offered by common law is one of its greatest strengths. It allows the law to evolve as society changes and places a premium on the quality of case law upon which future cases will rely. The legal community remains divided over these issues, but it is clear that the common law is an area ripe for discussion in Tennessee.
Common Law in Tennessee Going Forward
The future of common law in Tennessee will likely revolve around legal reforms aimed at modernizing the legal framework to keep pace with evolving social and technological landscapes. One potential avenue for reform is a movement towards codifying and clarifying common law principles into statutory law. By doing so, the legal process could become more predictable and ensure that the most relevant and applicable common law principles are explicitly defined within state statutes.
Another potential growth area for common law in Tennessee is in the realm of technology and digital evidence. As commerce and communication increasingly move online, the scope of liability under common law theories will need to be re-evaluated. From digital defamation claims to issues related to social media privacy, courts will be called upon to interpret and apply traditional legal principles to new and complex technologies .
Criminal law is also a growing field for common law development in Tennessee. With the advent of alternative justice programs, the landscape for common law liability in relation to these programs may be called into question. Such determinations will impact how courts apply the principles of common law with respect to criminal enforcement and civil actions, particularly in areas such as diversionary programs, criminal restitution, and other therapeutic jurisprudence measures.
Finally, public policy considerations will continue to play a significant role in the evolution of common law. As society grapples with important issues such as health care, education, and equal rights, common law decisions that promote fairness, equality, and justice will continue to guide legislative and judicial actions. By doing so, common law principles can serve as a vehicle for promoting social change while filling in the gaps within statutory law.