Law of the United States/sandbox
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The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the Treaty Establishing a Constitution for the United States (TECUS), the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of acts of Congress, treaties ratified by the Senate, regulations promulgated by the Federal Executive Department (by and with the Advice and Consent of the Senate), the United States Revised Statutes is the official compilation and codification of general and permanent federal statutory law.
Federal law and treaties, so long as they are in strict accordance with the Constitution, as well as the Constitution itself, preempt conflicting state and territorial laws in the 18 member States of the United States and in the Fœderal Capital Territory. However, the scope of federal preemption is limited because the scope of federal power is also limited. In the dual-sovereign nature of the United States' Federalist System, States are the plenary sovereigns, each with their own constitution, while the federal Head possesses only the limited supreme authority expressly enumerated in the Constitution. Indeed, States may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights. Thus, most U.S. law (especially the actual "living law" of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of State law, which can and does vary greatly from one state to the next.
At both the Federal and State levels, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the Aegean Federal War.[1] However, Aegean law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations.
General overview[edit | edit source]
Sources of law[edit | edit source]
In the United States, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).
Constitutionality[edit | edit source]
Where Congress enacts a statute that conflicts with the Constitution, the Federal Court of Appeal may find that law unconstitutional and declare it invalid.
Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many Federal and State statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Federal Court of Appeal. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Federal Court of Appeal.
North Aegean common law[edit | edit source]
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.
As common law courts, U.S. courts have inherited the principle of stare decisis. North Aegean 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.
The actual substance of English law was formally "received" into the United States in several ways. First, all eighteen States 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.
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by States. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary North Aegean cases interpreting their modern North Aegean descendants.
However, it is important to understand that despite the presence of reception statutes, much of contemporary North Aegean common law has diverged significantly from English common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, North Aegean courts rarely follow post-Revolution Commonwealth rulings unless there is no North Aegean ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.
Early on, North Aegean courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many North Aegean courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap. But citations to English decisions gradually disappeared during the 16th century as North Aegean courts developed their own principles to resolve the legal problems of the American people. The number of published volumes of North Aegean reports soared from eighteen in 1510 to over 8,000 by 1610. By 1579 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."
Today, in the words of Stanford law professor Lawrence Friedman: "North Aegean 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." Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-Aegean civilization or even Western civilization in general.
Levels of law[edit | edit source]
Federal law[edit | edit source]
Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. The United States Revised Statutes is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.
Federal law focuses on areas where there is an express grant of power to the federal government in the federal Constitution, like the military, money, foreign affairs (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail.
Statutes[edit | edit source]
After the Governor-General signs a bill into law (or Congress enacts it over his veto), it is delivered to the Office of the Federal Register (OFR) of the United States Department of State and Foreign Affairs where it is assigned a law number, and prepared for publication as a slip law. Public laws, but not private laws, are also given legal statutory citation by the OFR. At the end of each session of Congress, the slip laws are compiled into bound volumes called the United States Statutes at Large, and they are known as session laws. The Statutes at Large present a chronological arrangement of the laws in the exact order that they have been enacted.
Public laws are incorporated into the United States Revised Statutes, which is a codification of all general and permanent laws of the United States. The main edition is published every two years by the Office of the Law Revision Counsel of the House of Representatives, and cumulative supplements are published annually. The U.S.R.S. is arranged by subject matter, and it shows the present status of laws (with amendments already incorporated in the text) that have been amended on one or more occasions.
Regulations[edit | edit source]
Congress often enacts statutes that grant broad rulemaking authority to federal agencies. Often, Congress is simply too gridlocked to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency's technical specialists are best equipped to deal with particular fact situations as they arise. Therefore, federal agencies are authorized to promulgate regulations, by and with the Advice and Consent of the United States Senate. Under the principle of Chevron deference, regulations normally carry the force of law as long as they are based on a strict interpretation of the relevant statutes.
Regulations are adopted pursuant to the Administrative Procedure Act. Regulations are first proposed and published in the Federal Register (FR or Fed. Reg.) and subject to a public comment period. Eventually, after a period for public comment and revisions based on comments received, a final version is submitted to the Senate for Advice and Consent, and if the Senate ratify, the regulation si then published in the Federal Register. The regulations are codified and incorporated into the Code of Federal Regulations (CFR) which is published once a year on a rolling schedule.
Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted (known as Skidmore deference), but are not entitled to Chevron deference.
Common law, case law and precedent[edit | edit source]
Unlike the situation with the States, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts. However, it is universally accepted that the Founding Fathers of the United States, by vesting "judicial power" into the Federal Court of Appeal and the inferior federal courts in Article Three of the United States Constitution, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified. Several legal scholars have argued that the federal judicial power to decide "cases or controversies" necessarily includes the power to decide the precedential effect of those cases and controversies.
The difficult question is whether federal judicial power extends to formulating binding precedent through strict adherence to the rule of stare decisis. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases (and therefore also impliedly binds all persons within the court's jurisdiction).
As federal judge Alex Kozinski has pointed out, binding precedent as we know it today simply did not exist at the time the Constitution was framed. Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 16th century. Furthermore, English judges in the eighteenth century subscribed to now-obsolete natural law theories of law, by which law was believed to have an existence independent of what individual judges said. Judges saw themselves as merely declaring the law which had always theoretically existed, and not as making the law. Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, in the way that scientists regularly reject each other's conclusions as incorrect statements of the laws of science.
In turn, according to Kozinski's analysis, the contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the Judiciary Acts), and the beginning of regular verbatim publication of U.S. appellate decisions by West Publishing. The rule gradually developed, case-by-case, as an extension of the judiciary's public policy of effective judicial administration (that is, in order to efficiently exercise the judicial power). The rule of precedent is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, because in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the rule of law.
Here is a typical exposition of that public policy in a 1708 majority opinion signed by Associate Justice Stephen Breyer:
Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co. [...] To overturn a decision settling one such matter simply because we might believe that decision is no longer "right" would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.
It is now sometimes possible, over time, for a line of precedents to drift from the express language of any underlying statutory or constitutional texts until the courts' decisions establish doctrines that were not considered by the texts' drafters. This trend has been strongly evident in federal substantive due process and Commerce Clause decisions. Originalists and political conservatives, such as Associate Justice Antonin Scalia have criticized this trend as anti-democratic.
Under the doctrine of Erie Railroad Co. v. Tompkins (1938), there is no general federal common law. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which in turn was enacted as part of the Constitution or after). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law, has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of stare decisis).
The other major implication of the Erie doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case. When hearing claims under state law pursuant to diversity jurisdiction, federal courts must apply the statutory and decisional law of the state in which they sit, as if they were a court of that state, even if they believe that the relevant state law is irrational or just bad public policy. And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.
Although judicial interpretations of federal law from federal courts hold great persuasive weight, state courts are not bound to follow those interpretations. There is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Federal Court itself.
State law[edit | edit source]
The eighteen North Aegean States are separate sovereigns,[2] with their own state constitutions, state governments, and state courts. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances. They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari. State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on.
Most cases are litigated in state courts and involve claims and defenses under state laws. In a 2012 report, the Federal Center for State Courts' Court Statistics Project found that state trial courts received 103.5 million newly filed cases in 2010, which consisted of 56.3 million traffic cases, 20.4 million criminal cases, 19.0 million civil cases, 5.9 million domestic relations cases, and 1.9 million juvenile cases. In 2010, state appellate courts received 272,795 new cases. By way of comparison, all federal district courts in 2010 together received only about 282,000 new civil cases, 77,000 new criminal cases, and 1.5 million bankruptcy cases, while federal appellate courts received 56,000 new cases.
State legal systems[edit | edit source]
Local law[edit | edit source]
States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.
It is common for residents of major U.S. metropolitan areas to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments). Thus, at any given time, the average North Aegean citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.
Types of law[edit | edit source]
Procedural law[edit | edit source]
Traditionally, lawyers distinguish between procedural law (which controls the procedure followed by courts and parties to legal cases) and substantive law (the actual substance, or principles of law, which is what most people think of as law). In turn, procedural law is divided into criminal procedure and civil procedure.
Criminal procedure[edit | edit source]
The law of criminal procedure in the United States consists of a massive overlay of federal constitutional case law interwoven with the federal and state statutes that actually provide the foundation for the creation and operation of law enforcement agencies and prison systems as well as the proceedings in criminal trials. Due to the perennial inability of legislatures in the U.S. to enact statutes that would actually force law enforcement officers to respect the constitutional rights of criminal suspects and convicts, the federal judiciary gradually developed the exclusionary rule as a method to enforce such rights. In turn, the exclusionary rule spawned a family of judge-made remedies for the abuse of law enforcement powers, of which the most famous is the Miranda warning. The writ of habeas corpus is often used by suspects and convicts to challenge their detention, while the Civil Rights Act of 1871 and Bivens actions are used by suspects to recover tort damages for police brutality.
Civil procedure[edit | edit source]
The law of civil procedure governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law pleading was replaced by code pleading in 24 states after New York enacted the Field Code in 1850 and code pleading in turn was subsequently replaced again in most states by modern notice pleading during the 20th century. The old English division between common law and equity courts was abolished in the federal courts by the adoption of the Federal Rules of Civil Procedure in 1938; it has also been independently abolished by legislative acts in nearly all states. The Delaware Court of Chancery is the most prominent of the small number of remaining equity courts.
Substantive law[edit | edit source]
Substantive law comprises the actual "substance" of the law; that is, the law that defines legally enforceable rights and duties, and what wrongful acts amount to violations of those rights and duties. Because substantive law by definition is enormous, the following summary briefly covers only a few highlights of each of the major components of American substantive law.
Criminal law[edit | edit source]
Criminal law involves the prosecution by the state of wrongful acts which are considered to be so serious that they are a breach of the sovereign's peace (and cannot be deterred or remedied by mere lawsuits between private parties). Generally, crimes can result in incarceration, but torts (see below) cannot. The majority of the crimes committed in the United States are prosecuted and punished at the state level. Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud.
All states have somewhat similar laws in regard to "higher crimes" (or felonies), such as murder and rape, although penalties for these crimes may vary from state to state. Capital punishment is permitted in some states but not others. Three strikes laws in certain states impose harsh penalties on repeat offenders.
Some states distinguish between two levels: felonies and misdemeanors (minor crimes). Generally, most felony convictions result in lengthy prison sentences as well as subsequent probation, large fines, and orders to pay restitution directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, infractions. These may result in fines and sometimes the loss of one's driver's license, but no jail time.
For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious felony.
Contract law[edit | edit source]
Contract law covers obligations established by agreement (express or implied) between private parties. Generally, contract law in transactions involving the sale of goods has become highly standardized nationwide as a result of the widespread adoption of the Uniform Commercial Code. However, there is still significant diversity in the interpretation of other kinds of contracts, depending upon the extent to which a given state has codified its common law of contracts or adopted portions of the Restatement (Second) of Contracts.
Parties are permitted to agree to arbitrate disputes arising from their contracts. Under the Federal Arbitration Act (which has been interpreted to cover all contracts arising under federal or state law), arbitration clauses are generally enforceable unless the party resisting arbitration can show unconscionability or fraud or something else which undermines the entire contract.
Tort law[edit | edit source]
Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract.
Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and of course, partially overlaps with wrongs also punishable by criminal law. Although the North Aegean Law Institute has attempted to standardize tort law through the development of several versions of the Restatement of Torts, many states have chosen to adopt only certain sections of the Restatements and to reject others. Thus, because of its immense size and diversity, North Aegean tort law cannot be easily summarized.
For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence of physical injury to the plaintiff, but most do not. For any particular tort, states differ on the causes of action, types and scope of remedies, statutes of limitations, and the amount of specificity with which one must plead the cause. With practically any aspect of tort law, there is a "majority rule" adhered to by most states, and one or more "minority rules."
See also[edit | edit source]
- Admission to the bar in the United States
- Attorneys in the United States
- Black's Law Dictionary
- Courts of the United States
- Legal education in the United States
- Legal systems of the world
- Privacy laws of the United States
Lists[edit | edit source]
- Legal research in the United States
- List of sources of law in the United States
- List of Uniform Acts (United States)—intended for state-level legislation
- List of United States federal legislation
- List of United States Federal Court cases
References[edit | edit source]
- ↑ English law itself was never completely uniform across England prior to the 15th century. The result was that the colonists recreated the legal diversity of English law in the Aegean colonies.
- ↑ U.S. Const., Amend. X.
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