Wednesday, February 6, 2008

Law 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 Revolutionary War.[1] However, the supreme law of the land is the United States Constitution and, under the Constitution's Supremacy Clause, laws enacted by Congress and treaties to which the U.S. is a party. These form the basis for federal laws under the federal constitution in the United States, circumscribing the boundaries of the jurisdiction of federal law and the laws in the fifty U.S. states and territories.

General overview

Sources of law
In the United States, the law is derived from four sources. These four sources are 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 may find that law unconstitutional. 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 bills of attainder[2] and general search warrants.[3]

American common law
The United States and most Commonwealth countries are heirs to the common law legal tradition of English law;[4] for example, U.S. courts have inherited the principle of stare decisis. A small number of important British statutes in effect at the time of the Revolution have been independently enacted in nearly identical form by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds and the Statute of 13 Elizabeth. Such English statutes are still regularly cited in contemporary legal writings about their modern American descendants. Occasionally, contemporary U.S. courts may cite a pre-Revolution case 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.[5]

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. The earliest American cases, 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.[6] 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.[7] The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.[8] Today, the vast majority of American legal citations are to domestic cases. Sometimes, courts, and casebook editors, do make exceptions for opinions on issues of first impression by brilliant British jurists, like William Blackstone or Lord Denning.

Some adherents of originalism and strict constructionism such as Justice Antonin Scalia of the 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, with the sole exception of cases interpreting international 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 post-dated 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.[9]

Federal law

Federal law originates with the Constitution, which gives Congress the power to enact statutes 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 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.

State law

The fifty American states are separate sovereigns with their own state constitutions and state governments.[10] 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.

Unlike other common law jurisdictions, all American states have codified some or all of their statutory law into legal codes. 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." Most other states use terms such as "Revised Statutes" or "Compiled Statutes" for their codes. 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.[11] 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.[12]

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 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 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

States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. 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 colony. Puerto Rico is also a 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 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 states, including California, Colorado, New Mexico, and Wyoming use a system of allocating water rights known as the 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.


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 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 fictions 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.[13]. 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.[14] Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985,[15] by Australia in July 1992,[16] and by Japan in June 1994.[17]

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.