Law of the United States
77749
224823028
2008-07-10T16:01:18Z
GuelphGryphon98
2115407
/* Sources of law */
[[Image:Constitution Pg1of4 AC.jpg|thumb|right|250px|The [[United States Constitution]], the supreme law of the United States]]
[[Image:Unitedstatesreports.jpg|thumb|right|250px|The [[United States Reports]], the official reporter of the [[Supreme Court of the United States]]]]
The '''law of the [[United States]]''' was originally largely derived from the [[common law]] system of [[English law]], which was in force at the time of the [[American Revolutionary War|Revolutionary War]].<ref>Lawrence M. Friedman, ''A History of American Law'', 3rd ed. (New York: Touchstone, 2005), 4-5. Professor Friedman points out that English law itself was never completely uniform across [[England]] prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.</ref> However, the supreme law of the land is the [[United States Constitution]] and, under the Constitution's [[Supremacy Clause]], laws enacted by Congress and [[treaty|treaties]] to which the U.S. is a party. These form the basis for [[federal law]]s under the [[federation|federal constitution]] in the United States, circumscribing the boundaries of the jurisdiction of federal law and the laws in the fifty [[U.S. state]]s and territories.
==General overview==
===Sources of law===
In the United States, the law is derived from four sources. These four sources are [[United States constitutional law|constitutional law]], [[administrative law]], [[statutory law]], and the common law (which includes [[case law]]). The most important source of law is the [[United States Constitution]]. All other law falls under, and is subordinate to, that document. No law may contradict the Constitution. For example, if Congress passes a statute that conflicts with the Constitution, the [[Supreme Court of the United States|Supreme Court]] may find that law [[unconstitutional]], and invalidate said law. 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 Supreme Court.
Also, certain practices traditionally allowed under English common law were outlawed by the Constitution, such as [[bill of attainder|bills of attainder]]<ref>U.S. Const., Art. 1, §§ 9 and 10.</ref> and general search warrants.<ref>[[Fourth Amendment to the United States Constitution|U.S. Const., Amend. IV]].</ref>
===American common law===
The United States and most [[Commonwealth of Nations|Commonwealth]] countries are heirs to the [[common law]] legal tradition of [[English law]];<ref>Friedman, 67-69.</ref> for example, U.S. courts have inherited the principle of ''[[stare decisis]]''.
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.<ref>Miles O. Price & Harry Bitner, ''Effective Legal Research: A Practical Manual of Law Books and Their Use'', 3rd ed. (Buffalo: William Hein & Co., 1969), 272.</ref> Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.<ref>''Ibid.''</ref> 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<ref>''Ibid.''</ref>, such as the heightened duty of care traditionally imposed upon [[common carrier]]s.<ref>''See, e.g., Gomez v. Superior Court (Walt Disney Co.)'', [http://online.ceb.com/calcases/C4/35C4t1125.htm 35 Cal. 4th 1125] (2005) (citing ''Lovett v. Hobbs'', 89 Eng. Rep. 836 (1680)). The ''Gomez'' court relied on a line of cases originating with ''Lovett'' in order to hold that [[Disneyland]] was a common carrier.</ref>
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 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 Transfers Act]]). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.<ref>See, e.g., ''Meija v. Reed'', [http://online.ceb.com/calcases/C4/31C4t657.htm 31 Cal. 4th 657] (2003).</ref>
However, it is important to understand that despite the presence of reception statutes, much of ''contemporary'' American common law has diverged significantly from British Commonwealth common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.
Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American 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.<ref>Friedman, 69.</ref> But 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.<ref>Elizabeth Gaspar Brown, "Frontier Justice: Wayne County 1796-1836," in ''Essays in Nineteenth-Century American Legal History'', ed. Wythe Holt, 676-703 (Westport, CT: Greenwood Press, 1976): 686. Between 1808 and 1828, the briefs filed in court cases in the [[Territory of Michigan]] changed from a complete reliance on English sources of law to an increasing reliance on citations to American sources.</ref> The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.<ref>Friedman, 475.</ref> Today, in the words of Stanford law professor Lawrence Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to [[William Blackstone|Blackstone]]; but current British law almost never gets any mention."<ref>Lawrence M. Friedman, ''American Law in the Twentieth Century'' (New Haven: Yale University Press, 2004), 575.</ref>
Some adherents of [[originalism]] and [[strict constructionism]] such as Justice [[Antonin Scalia]] of the [[Supreme Court of the United States|United States Supreme Court]] argue that American courts should ''never'' look for guidance to post-Revolution cases from legal systems outside of the United States, regardless of whether the reasoning is persuasive,<ref>Scalia expressed his views in his dissent in ''[[Atkins v. Virginia]]'', {{ussc|536|304|2002}}, quoting his own earlier dissent in ''[[Thompson v. Oklahoma]]'', {{ussc|487|815|1988}}: "Equally irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people. 'We must never forget that it is a Constitution for the United States of America that we are expounding. … Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.' "</ref> with the sole exception of cases interpreting international [[treaty|treaties]] to which the United States is a signatory. This position follows inevitably from the philosophy of originalism, which posits not only that the Constitution is the ultimate source of judicial authority in the U.S., but that the only proper analysis of the document consists of discerning the document's original meaning at the time of its adoption. Therefore, discussion of British law that postdates the Constitution is irrelevant as it sheds no light on the original meaning of the Constitution. Others, such as Justices [[Anthony Kennedy]] and [[Stephen Breyer]], disagree, and cite foreign law from time to time, where they believe it is informative, persuasive, useful or helpful. However, foreign law has never been cited as binding precedent, but merely as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.<ref>See ''[[Lawrence v. Texas]]'', 538 U.S. 558 (2003), in which the majority cited a European court decision, ''[[Dudgeon v. United Kingdom]]'', 45 Eur. Ct. H. R. (1981), as indicative of the shared values of Western civilization.</ref>
==Federal law==
'''Federal law''' originates with the Constitution, which gives Congress the power to enact [[statute]]s for certain limited purposes like regulating [[interstate commerce]]. Nearly all statutes have been codified in the [[United States Code]]. Many statutes give [[executive branch]] agencies the power to create [[regulation]]s, 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 U.S.A., Inc. v. Natural Resources Defense Council, Inc.|''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]].
==State law==
[[Image:Californiapenalcode.jpg|thumb|right|250px|Volumes of the [[Thomson West]] annotated version of the [[California Penal Code]], the codification of [[criminal law]] in the [[U.S. state|state]] of [[California]]]]
The fifty American states are separate [[sovereignty|sovereigns]] with their own [[state constitution]]s and [[state government]]s.<ref>U.S. Const., Amend. X.</ref> 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.
Nearly all states started with the same British common law base, with the notable exception of Louisiana; [[Louisiana law]] has always been strongly influenced by the French [[Napoleonic Code]]. The passage of time has resulted in enormous diversity in the laws of the states. State courts have expanded the old common law rules in different directions (through their traditional power to make law under the doctrine of [[stare decisis]]), and state legislatures have passed various statutes expanding or overriding many judge-made rules.
Many American states have codified some or all of their statutory law into [[legal code]]s. Codification was an idea borrowed from the civil law through the efforts of American lawyer [[David Dudley Field]]. [[New York]]'s codes are known as "Laws." [[California]] and [[Texas]] simply call them "Codes." Other states use terms such as "Revised Statutes" or "Compiled Statutes" for their compilations. California, New York, and Texas have separate subject-specific codes, while all other states and the federal government use a single code divided into numbered titles.
In some states, codification is often treated as a mere [[restatement]] of the common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature.<ref>[[California]] is the supreme example of this position. ''Li v. Yellow Cab'', [http://online.ceb.com/calcases/C3/13C3d804.htm 13 Cal. 3d 804] (1975).</ref> In other states, there is a tradition of strict adherence to the plain text of the codes.
The advantage of codification is that once the state [[legislature]] becomes accustomed to writing new laws as amendments to an existing code, the code will usually reflect democratic sentiment as to what the current law is (though the entire state of the law must always be ascertained by reviewing case law to determine how judges have interpreted a particular codified statute).
In contrast, in jurisdictions with uncodified statutes, like the [[United Kingdom]], determining what the law is can be a more difficult process. One has to trace back to the earliest relevant Act of Parliament, and then identify all later Acts which amended the earlier Act, or which directly overrode it. For example, when the UK decided to create a [[Supreme Court of the United Kingdom]], lawmakers had to identify every single Act referring to the [[House of Lords]] that was still good law, and then amend all of those laws to refer to the Supreme Court.<ref>[http://www.opsi.gov.uk/acts/acts2005/50004-aa.htm#sch9 Constitutional Reform Act 2005], via Office of Public Sector Information (OPSI.Gov.uk)</ref>
===Criminal law===
In the arena of [[criminal law]], 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.
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 [[Recreational drug use| 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.
===Tort law===
[[United States tort law]] varies widely across the states. 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."
===Attempts at "uniform" laws===
Efforts by various organizations to create "uniform" state laws have been only partially successful. The two leading organizations are the [[American Law Institute]] (ALI) and the [[National Conference of Commissioners on Uniform State Laws]] (NCCUSL). The most successful and influential uniform laws are the [[Uniform Commercial Code]] (a joint ALI-NCCUSL project) and the [[Model Penal Code]] (from ALI).
Apart from model codes, the [[American Law Institute]] has also created [[Restatement of the Law|Restatements of the Law]] which are widely used by lawyers and judges to simplify the task of summarizing the current status of the common law. Instead of listing long, tedious citations of old cases (in order to invoke the long-established principles contained in those cases), they can simply cite a Restatement section to refer to a particular common law principle.
==Local law==
[[Image:Parkingregulationssign.jpg|thumb|right|300px|Law affects every aspect of American life, including parking lots. Note the citations to statutes on the sign.]]
States have delegated lawmaking powers to thousands of [[government agency|agencies]], [[township]]s, [[county|counties]], [[city|cities]], and [[special district]]s. And all the state constitutions, statutes and regulations are subject to judicial interpretation like their federal counterparts.
Thus, at any given time, the average American 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.
==Odd exceptions==
As noted above, much of [[Louisiana law]] is derived from the [[Napoleonic Code]]; the adherence to French legal traditions stems from its time as a [[French colonization of the Americas|French colony]]. [[Puerto Rico]] is also a [[Civil law (legal system)|civil law]] jurisdiction of the United States. However, the criminal law of both jurisdictions has been necessarily modified by common law influences and the supremacy of the federal Constitution.
Many states in the southwest that were originally Mexican territory have inherited several unique features from the civil law that governed when they were part of Mexico. These states include [[Arizona]], [[California]], [[Nevada]], [[New Mexico]], and [[Texas]]. For example, these states all have a [[community property]] system for the property of [[Marriage|married]] persons ([[Idaho]], [[Washington]], and [[Wisconsin]] have also adopted community property systems, but they did not inherit them from a previous civil law system that governed the state). Another example of civil law influence in these states can be seen in the California Civil Code, where the law of contracts is treated as part of the [[law of obligations]] (though the rules actually codified are clearly derived from the common law).
Many of the [[Western United States|western states]], including California, [[Colorado]], [[New Mexico]], and [[Wyoming]] use a system of allocating [[water rights]] known as the [[Prior appropriation water rights|prior appropriation doctrine]], which is derived from Spanish civil law. It should be noted that each state has modified the doctrine to suit its own internal conditions and needs.
==Innovations==
"American law is, by international standards, a series of innovations and exceptions... the United States has charted a distinctive and idiosyncratic legal path."[http://www.nytimes.com/2008/01/29/us/29bail.html?_r=1&oref=slogin]
Several legal innovations first arose in the United States, and some of those innovations have been adopted by other countries.
The most broadly influential innovation of 20th century American law was the rule of [[strict liability]] for [[product liability|defective products]], which originated with judicial glosses on the law of [[warranty]]. In 1963, [[Roger J. Traynor]] of the [[Supreme Court of California]] threw away [[legal fiction]]s based on warranties and imposed strict liability for defective products as a matter of [[public policy]] in the landmark case of ''Greenman v. Yuba Power Products''.<ref>Mark A. Kinzie & Christine F. Hart, ''Product Liability Litigation'' (Clifton Park, NY: Thomson Delmar Learning, 2002), 100-101. See also ''Greenman v. Yuba Power Products, Inc.'', [http://online.ceb.com/CalCases/C2/59C2d57.htm 59 Cal. 2d 57] (1963).</ref>. The [[American Law Institute]] subsequently adopted the ''Greenman'' rule in Section 402A of the ''Restatement (Second) of Torts'', which was published in 1965 and was very influential throughout the United States.<ref>Kinzie & Hart, 101.</ref> Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985,<ref>Norbert Reich, ''Understanding EU Law: Objectives, Principles and Methods of Community Law'' (Antwerp: Intersentia, 2005), 337.</ref> by Australia in July 1992,<ref>Ellen E. Beerworth, "Australia," 51-74, in ''International Product Liability'', vol. 1, ed. Christian Campbell (Salzburg: Yorkhill Law Publishing, 2006), 52.</ref> and by Japan in June 1994.<ref>Patricia L. Maclachlan, ''Consumer Politics in Postwar Japan'' (New York: Columbia University Press, 2002), 226.</ref>
By the 1990s, the avalanche of American cases resulting from ''Greenman'' and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the ''Restatement (Third) of Torts: Product Liability''.
==See also==
*[[Legal systems of the world]]
*''[[Black's Law Dictionary]]''
===Lists===
*[[List of sources of law in the United States]]
*[[List of United States Supreme Court cases]]
*[[List of Uniform Acts (United States)]]
*[[List of United States federal legislation]]
==References==
<references/>
==External links==
*[http://www.findlaw.com/casecode/ Texts of US federal laws and US state laws]
*[http://www.law.cornell.edu/uscode/ U.S. Code collection] at Cornell University's Legal Information Institute
*[http://www.uslawinfo.com US Law Informations and News]
*[http://www.uscodesurf.com U.S. Code - Cross Referencing]
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