In Florida, what’s the difference between DeSantis-signed statutory laws and common law?

Lianna Norman, Palm Beach Post
·4 min read
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Gov. Ron DeSantis signed a sweeping wave of laws this year, passed by the Republican supermajority of Florida’s Legislature, that have been criticized as unconstitutional and discriminatory.

And some of the new laws have thrown up red flags for more than just Florida residents who oppose the governor’s “war on woke” agenda. Several of DeSantis’s primary policies have been blocked in court rulings, including his 2022 'Stop WOKE Act' ban on discussions in addressing race-related issues in workplace training.

The difference between Florida’s new laws and what the court considers to be constitutional begs a few questions: If statutory laws are deemed unconstitutional, how does that legislation become unwritten or changed? Who writes laws that can override statutory laws, or laws that come from a state’s governing body?

Here’s an explainer on the difference between statutory and common law and how they interact with each other.

What are the three types of law?

  • Case or common law: Case law, or common law, is created in the courts by a judicial body on a state or federal level.

  • Statutory law: Statutory law describes any law that has been created by a legislative body. For example: Laws created by the U.S. Congress, laws created by Florida’s State Legislature.

  • Regulatory law: Regulatory laws are created by state or federal government agencies and administrative bodies. For example: Laws created by the U.S. Department of Labor, laws created by the Florida Department of Health, the Florida Department of Children and Families, etc.

What’s the difference between common law and statutory law?

The main difference between common and statutory law, other than the fact that one comes from the courts and one comes from a legislative body, is that statutory law is codified.

Codifying law doesn’t mean creating new laws, it arranges existing laws (typically, by subject) into a code. Statutory law includes compiled legislation that was passed on a local, state or federal level.

For example: Florida’s chapter of statutes detailing the state’s laws for liquor shares some laws with the rest of the country, like the legal drinking age. But there are also statutes in Florida’s list of liquor laws that are unique to the state, like its law limiting the size of champagne bottles approved for sale in the state.

Common law is also compiled into rules and statutes, but it’s uncodified, which means it relies on precedent set by previous rulings from local, state or federal court cases. Sometimes a judgment establishes a new precedent, which can turn into a new law.

To make common law stable, precedents set in federal court cases are legally binding for lower courts. Lower courts can deviate from precedent if they feel the precedent set is outdated or not closely related to a case.

Examples of common law:

Does common law supersede statutory law?

Statutory law is more strict in its application, there isn’t as much room for interpretation as there is in common law. This makes statutory law more powerful because statutory laws mean exactly what they say with no room for deviation from the letter of the law.

Statutes can be overturned though, if they’re deemed unconstitutional by a later legislative body – or in the case of Gov. DeSantis recent string of laws, a judicial body.

Here’s a look at DeSantis’ most recently blocked laws

You can read a full, updated list of DeSantis’s primary policies that have been batted down in the courts here.

Here’s a snapshot of the most-recently blocked pieces of legislation to come from the governor:

  • July 3: Judge blocks SB 7050, which prohibited non-U.S. citizens from “collecting or handling” voter-registration applications and made it a felony for voter registration group workers to keep voters’ personal information.

  • June 23: A federal court blocked DeSantis’ “Protection of Children” law for being overly vague and unconstitutional. The law doesn’t include the words "drag show," but many saw the law barring children from attending "adult live performances" as targeting the LGBTQ community through drag show performances.

  • June 21: A U.S. District Judge ruled that the Florida statute prohibiting Medicaid payment for transition care for transgender people such as puberty blockers, hormone therapy and surgeries is discriminatory and in violation of the federal Medicaid statute, the Equal Protection Clause and the Affordable Care Act.

Lianna Norman covers trending news in Palm Beach County for The Palm Beach Post. You can reach her at lnorman@pbpost.com. You can follow her reporting on social media @LiannaNorman on Twitter.

This article originally appeared on Palm Beach Post: Which Florida laws can be blocked? Is common or statutory law stronger?