By way of contrast,  statutory law creates law with the successful statutes of a legislative body and regulatory law utilizes requirements and obligations handed down by members of the executive branch to form law.  Consitutional law predicates its laws upon the articles of the Constitution.

A governing principle of common law is stare decisis which in short means that if the components of a case are materially the same as a previously decided case then a similar result must be reached.

In the U.S. the Supreme Court, the only court expressly created by the Constitution, is a common law court by implication of Article 3 of the Constitution.  The Supreme Court uses common law to adjudicate the legal implications of statutory and regulatory law and the application of and implications of Constitutional law.

The term comes from English laws that were considered common among different districts over which itinerent judges presided.  These laws were not statutory in nature but the citizens of the several districts held them to be universally understood.   These common laws are referred to as having authority to review royal power in the Magna Carta by the term “. . . except by the lawful judgement of his peers or by the law of the land.” (emphasis mine)

Judge Hand lived during a period often cited as judicially progressive (the late Nineteenth and early Twentieth Century saw the Supreme Court active in reviewing large volumes of state legislation based on an application of “due process” to economic and social issues).  Judge Hand advocated for judicial restraint and leaving law-making to the legislature; professionally, he did not believe in overturning or striking down legislation even if his personal opinion a particular law was negative.  Learned Hand even felt that the Bill of Rights was not to be used by courts to overrule statutory law; thus his arguments that the “due process” clauses of the Fifth and Fourteenth Amendments should not be used by judges to meddle in legislation.

Judge Hand was a strong advocate of the principle of free speech.  His free speech test, most famously found in Masses Publishing Co. v. Patten (1917), was that anything short of directly inciting illegal action should be protected speech.  This view was overturned on appeal and Supreme Court Justice Oliver Wendell Holmes, Jr.’s “clear and present danger” test became the standard for free speech in the June 1919 Schenck v. United States decision.  Perhaps it isn’t suprising to find that Hand is credited as one of three or four judicial theorists who’s arguments seemed to sway Justice Holmes so that when he wrote his famous and ubiquitous “shout[ing] fire in a crowded theater” statement in the November 1919 decision of Abrams v. United States, his dissent modified free speech tests for the last century.

Judge Hand may have been a somewhat forgettable lawyer and a standout as a federal judge but his greatest contribution was to the body of judicial theory; most especially in regards to libertarian interpretation moderated by judicial restraint.