![Inside the United States Supreme Court](https://upload.wikimedia.org/wikipedia/commons/2/25/Inside_the_United_States_Supreme_Court.jpg)
The
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
comprises many levels of
codified and uncodified forms of
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
, of which the most important is the nation's
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
, which prescribes the foundation of the
federal government
A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, as well as various
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
. The Constitution sets out the boundaries of federal law, which consists of
Acts of Congress
An Act of Congress is a statute enacted by the United States Congress. Acts may apply only to individual entities (called private laws), or to the general public ( public laws). For a bill to become an act, the text must pass through both house ...
,
treaties
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal perso ...
ratified by the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, regulations promulgated by the
executive branch
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state.
In poli ...
, and
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
originating from the
federal judiciary. The
United States Code
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
is the official compilation and
codification of general and permanent federal statutory law.
Federal law and treaties, so long as they are in accordance with the Constitution, preempt conflicting state and territorial laws in the 50
U.S. state
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
s and in the territories. However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual sovereign system of
American federalism (actually tripartite because of the presence of
Indian reservation
An Indian reservation is an area of land held and governed by a federally recognized Native American tribal nation whose government is accountable to the United States Bureau of Indian Affairs and not to the state government in which it ...
s), states are the
plenary sovereign
''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'.
The roles of a sovereign vary from monarch, ruler or ...
s, each with their own
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
, while the federal sovereign possesses only the limited supreme authority 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 U.S. law (especially the actual "living law" of
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
,
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
,
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
,
criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
, and
family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
experienced by the majority of citizens on a day-to-day basis) consists primarily of
state law State law refers to the law of a federated state, as distinguished from the law of the federation of which it is a part. It is used when the constituent components of a federation are themselves called states. Federations made up of provinces, cant ...
, which can and does vary greatly from one state to the next.
At both the federal and state levels, with the exception of the
legal system of Louisiana, the law of the United States is largely derived from the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
system of
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, which was in force in
British America
British America comprised the colonial territories of the English Empire, which became the British Empire after the 1707 union of the Kingdom of England with the Kingdom of Scotland to form the Kingdom of Great Britain, in the Americas from 16 ...
at the time of the
American Revolutionary War
The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was a major war of the American Revolution. Widely considered as the war that secured the independence of t ...
.
[ Professor Friedman points out that English law itself was never completely uniform across ]England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies. However, American 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
![Parking regulations sign](https://upload.wikimedia.org/wikipedia/commons/9/96/Parking_regulations_sign.jpg)
Sources of law
In the United States, the law is derived from five sources:
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
,
statutory law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, state legi ...
, treaties,
administrative regulations, and the common law (which includes case law).
Constitutionality
Where Congress enacts a statute that conflicts with the Constitution, state or federal courts may rule that law to be
unconstitutional
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
and declare it invalid.
Notably, a statute does not automatically disappear merely because it has been found unconstitutional; it may, however, 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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
'', no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. 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 Supreme Court.
American common law
The United States and most
Commonwealth
A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
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
A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attai ...
and general search warrants.
As common law courts, U.S. courts have inherited the principle of ''stare decisis''. American 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 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. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.
[''Ibid.''] 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 carrier
A common carrier in common law countries (corresponding to a public carrier in some civil law systems,Encyclopædia Britannica CD 2000 "Civil-law public carrier" from "carriage of goods" usually called simply a ''carrier'') is a person or compan ...
s.
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 are the
Statute of Frauds
The Statute of Frauds (29 Car 2 c 3) (1677) was an Act of the Parliament of England. It required that certain types of contracts, wills, and grants, and assignment or surrender of leases or interest in real property must be in writing and sign ...
(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 American cases interpreting their modern American descendants.
Despite the presence of reception statutes, much of ''contemporary'' American common law has diverged significantly from English common law. Although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution precedents from England or the British Commonwealth.
Early on, American courts, even after the Revolution, often did cite contemporary English cases, because appellate decisions from many American courts were not regularly reported until the mid-19th century. Lawyers and judges used English legal materials to fill the gap.
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. The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.
By 1879 one of the delegates to the
California constitutional convention
The California Constitutional Conventions were two separate constitutional conventions that took place in California during the nineteenth century which led to the creation of the modern Constitution of California. The first, known as the 1849 ...
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
onot 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 M. Friedman
Lawrence Meir Friedman (born April 2, 1930) is an American Legal education, law professor, historian of American legal history, and author of nonfiction and fiction books. He has been a member of the faculty at Stanford Law School since 1968.
Bi ...
: "American 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-American civilization or even Western civilization in general.
Levels of law
Federal law
Federal law originates with the Constitution, which gives Congress the power to enact
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
s for certain limited purposes like regulating
interstate commerce
The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among ...
. The
United States Code
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
s, which are published in the
Federal Register
The ''Federal Register'' (FR or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every weekday, except on feder ...
and codified into the
Code of Federal Regulations
In the law of the United States, the ''Code of Federal Regulations'' (''CFR'') is the codification of the general and permanent regulations promulgated by the executive departments and agencies of the federal government of the United States. ...
. 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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
''.
During the 18th and 19th centuries, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the
military
A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typically authorized and maintained by a sovereign state, with its members identifiable by their distinct ...
,
money
Money is any item or verifiable record that is generally accepted as payment for goods and services and repayment of debts, such as taxes, in a particular country or socio-economic context. The primary functions which distinguish money are as ...
,
foreign relations
A state's foreign policy or external policy (as opposed to internal or domestic policy) is its objectives and activities in relation to its interactions with other states, unions, and other political entities, whether bilaterally or through mu ...
(especially international treaties),
tariff
A tariff is a tax imposed by the government of a country or by a supranational union on imports or exports of goods. Besides being a source of revenue for the government, import duties can also be a form of regulation of foreign trade and poli ...
s,
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
(specifically
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
s and
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
s), and
mail
The mail or post is a system for physically transporting postcards, letter (message), letters, and parcel (package), parcels. A postal service can be private or public, though many governments place restrictions on private systems. Since the mid ...
. Since the start of the 20th century, broad interpretations of the
Commerce
Commerce is the large-scale organized system of activities, functions, procedures and institutions directly and indirectly related to the exchange (buying and selling) of goods and services among two or more parties within local, regional, nation ...
and
Spending
Consumption is the act of using resources to satisfy current needs and wants. It is seen in contrast to investing, which is spending for acquisition of ''future'' income. Consumption is a major concept in economics and is also studied in many o ...
Clauses of the Constitution have enabled federal law to expand into areas like
aviation
Aviation includes the activities surrounding mechanical flight and the aircraft industry. ''Aircraft'' includes fixed-wing and rotary-wing types, morphable wings, wing-less lifting bodies, as well as lighter-than-air craft such as hot air ...
,
telecommunications
Telecommunication is the transmission of information by various types of technologies over wire, radio, optical, or other electromagnetic systems. It has its origin in the desire of humans for communication over a distance greater than that fe ...
,
railroad
Rail transport (also known as train transport) is a means of transport that transfers passengers and goods on wheeled vehicles running on rails, which are incorporated in tracks. In contrast to road transport, where the vehicles run on a pre ...
s,
pharmaceutical
A medication (also called medicament, medicine, pharmaceutical drug, medicinal drug or simply drug) is a drug used to diagnose, cure, treat, or prevent disease. Drug therapy (pharmacotherapy) is an important part of the medical field and re ...
s,
antitrust
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
, and
trademark
A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...
s. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and
employment law
Labour laws (also known as labor laws or employment laws) are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, ...
, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like
insurance
Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to hedge ...
, Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them (see, e.g., the
McCarran–Ferguson Act
The McCarran–Ferguson Act, 15 U.S.C. §§ 1011-1015, is a United States federal law that exempts the business of insurance from most federal regulation, including federal antitrust laws to a limited extent. The 79th Congress passed the McCarran†...
).
Statutes
![United States Code 2012 Official Edition](https://upload.wikimedia.org/wikipedia/commons/d/db/United_States_Code_2012_Official_Edition.jpg)
After the president signs a bill into law (or Congress enacts it over the president's veto), it is delivered to the
Office of the Federal Register
The Office of the Federal Register is an office of the United States government within the National Archives and Records Administration.
The Office publishes the ''Federal Register'', ''Code of Federal Regulations'', ''Public Papers of the Presid ...
(OFR) of the
National Archives and Records Administration
The National Archives and Records Administration (NARA) is an " independent federal agency of the United States government within the executive branch", charged with the preservation and documentation of government and historical records. It i ...
(NARA) where it is assigned a law number, and prepared for publication as a
slip law
In the United States, a slip law is an individual Act of Congress which is either a public law (Pub.L.) or a private law (Pvt.L.). They are part of a three-part model for publication of federal statutes consisting of slip laws, session laws, and ...
. 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
The ''United States Statutes at Large'', commonly referred to as the ''Statutes at Large'' and abbreviated Stat., are an official record of Acts of Congress and concurrent resolutions passed by the United States Congress. Each act and resolutio ...
, and they are known as
session law
Session laws are the collection of statutes enacted by a legislature during a single session of that legislature, often published following the end of the session as a bound volume. The United States Statutes at Large are an example of session ...
s. 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 Code
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
, which is a codification of all general and permanent laws of the United States. The main edition is published every six years by the
Office of the Law Revision Counsel
The Office of the Law Revision Counsel of the United States House of Representatives prepares and publishes the United States Code, which is a consolidation and codification by subject matter of the general and permanent laws of the United States. ...
of the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
, and cumulative supplements are published annually.
The U.S. Code 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
![Code of Federal Regulations](https://upload.wikimedia.org/wikipedia/commons/c/ce/Code_of_Federal_Regulations.jpg)
Congress often enacts statutes that grant broad
rulemaking
In administrative law, rulemaking is the process that executive and independent agencies use to create, or ''promulgate'', regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more deta ...
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. Under the principle of ''
Chevron
Chevron (often relating to V-shaped patterns) may refer to:
Science and technology
* Chevron (aerospace), sawtooth patterns on some jet engines
* Chevron (anatomy), a bone
* ''Eulithis testata'', a moth
* Chevron (geology), a fold in rock lay ...
'' deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.
Regulations are adopted pursuant to the
Administrative Procedure Act (APA). 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 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
Skidmore may refer to:
Places United States
* Skidmore, Kansas
* Skidmore, Maryland
* Skidmore, Michigan
* Skidmore, Missouri
* Skidmore, Texas
* Skidmore, West Virginia
* Skidmore Fountain, a public fountain in Portland, Oregon
Other uses
* Sk ...
'' deference), but are not entitled to ''Chevron'' deference.
Common law, case law, and precedent
![United_States_Reports](https://upload.wikimedia.org/wikipedia/commons/7/75/United_States_Reports.jpg)
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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
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
The Founding Fathers of the United States, known simply as the Founding Fathers or Founders, were a group of late-18th-century American Revolution, American revolutionary leaders who United Colonies, united the Thirteen Colonies, oversaw the Am ...
, by vesting "judicial power" into the Supreme Court and the inferior federal courts in
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congres ...
, thereby vested in them the implied judicial power of common law courts to formulate
persuasive precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified.
[''Hart v. Massanari'', 266 F.3d 1155 (9th Cir. 2001), citing ''Anastasoff v. United States'', 223 F.3d 898, ''vacated as moot on reh'g en banc'', 235 F.3d 1054 (8th Cir. 2000).] 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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
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 implicitly binds all persons within the court's jurisdiction). Prior to a major change to federal court rules in 2007, about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case.
As federal judge
Alex Kozinski
Alex Kozinski (; born July 23, 1950) is a Romanian-American jurist and lawyer who was a judge on the United States Court of Appeals for the Ninth Circuit, U.S. Court of Appeals for the Ninth Circuit from 1985 to 2017. He was a prominent and inf ...
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 19th century.
Furthermore, English judges in the eighteenth century subscribed to now-obsolete
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
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
West (also known by its original name, West Publishing) is a business owned by Thomson Reuters that publishes legal, business, and regulatory information in print, and on electronic services such as Westlaw. Since the late 19th century, West ha ...
.
The rule gradually developed, case-by-case, as an extension of the judiciary's
public policy
Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
of effective judicial administration (that is, in order to efficiently exercise the judicial power).
The rule of binding 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
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
. The contemporary form of the rule is descended from Justice
Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept ...
's "landmark dissent in 1932’s ''Burnet v. Coronado Oil & Gas Co''.," which "catalogued the Court’s actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority."
[ Available via SpringerLink.]
Here is a typical exposition of how public policy supports the rule of binding precedent in a 2008
majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.
Not all cases have ...
signed by
Justice Breyer
Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and repl ...
:
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
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unen ...
and Commerce Clause decisions.
Originalists and political conservatives, such as Associate Justice
Antonin Scalia
Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
have criticized this trend as anti-democratic.
Under the doctrine of ''
Erie Railroad Co. v. Tompkins
''Erie Railroad Co. v. Tompkins'', 304 U.S. 64 (1938), was a landmark U.S. Supreme Court decision in which the Court held that there is no general American federal common law and that U.S. federal courts must apply state law, not federal law, t ...
'' (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 was either enacted as part of the Constitution or pursuant to constitutional authority). 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
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction that gives United States federal courts, U.S. federal courts the power to hear lawsuits that do not involve a federal question jurisdiction, federal ...
, federal trial 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.
Under ''Erie'', such federal deference to state law applies only in one direction: state courts are not bound by federal interpretations of state law. Similarly, state courts are also not bound by most federal interpretations of federal law. In the vast majority of state courts, interpretations of federal law from federal
courts of appeals and
district courts can be cited as persuasive authority, but state courts are not bound by those interpretations.
The U.S. Supreme Court has never squarely addressed the issue, but has signaled in dicta that it sides with this rule.
Therefore, in those states, 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. Supreme Court itself.
State and territory law
![Californiapenalcode](https://upload.wikimedia.org/wikipedia/commons/b/b5/Californiapenalcode.jpg)
The fifty American states are separate
sovereigns, with their own
state constitutions,
state government
A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or ...
s, 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 court
In the United States, a state supreme court (known by #Terminology, other names in some states) is the supreme court, highest court in the State court (United States), state judiciary of a U.S. state. On matters of State law (United States), st ...
s 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
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
. 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
National Center for State Courts
The National Center for State Courts (NCSC) is an independent, non-profit organization focused on improving the administration of justice in the United States and around the world. Its efforts are directed by a 27-member board of directors and thr ...
' 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 2016 together received only about 274,552 new civil cases, 79,787 new criminal cases, and 833,515 bankruptcy cases, while federal appellate courts received 53,649 new cases.
State legal systems
Territorial legal systems
*
Law of America Samoa
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
*
Law of Guam
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
*
Law of the Northern Mariana Islands The law of the Northern Mariana Islands includes:
* The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, which specifies which political issues require agreement between the U ...
*
Law of Puerto Rico
The legal system of Puerto Rico is a mix of the civil law and the common law systems.
Language
Puerto Rico is the only current U.S. jurisdiction whose legal system operates primarily in a language other than American English: namely, Spanish. Be ...
*
Law of the U.S. Virgin Islands
Local law
States have delegated lawmaking powers to thousands of
agencies,
township
A township is a kind of human settlement or administrative subdivision, with its meaning varying in different countries.
Although the term is occasionally associated with an urban area, that tends to be an exception to the rule. In Australia, Ca ...
s,
counties
A county is a geographic region of a country used for administrative or other purposesChambers Dictionary, L. Brookes (ed.), 2005, Chambers Harrap Publishers Ltd, Edinburgh in certain modern nations. The term is derived from the Old French ...
,
cities
A city is a human settlement of notable size.Goodall, B. (1987) ''The Penguin Dictionary of Human Geography''. London: Penguin.Kuper, A. and Kuper, J., eds (1996) ''The Social Science Encyclopedia''. 2nd edition. London: Routledge. It can be def ...
, 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 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.
Legal subjects
American lawyers draw a fundamental distinction between procedural law (which controls the procedure by which legal duties and rights are vindicated)
and substantive law (the actual substance of law, which is usually expressed in the form of various legal rights and duties).
Criminal law and procedure
![Boone County Courthouse courtroom front](https://upload.wikimedia.org/wikipedia/commons/6/61/Boone_County_Courthouse_courtroom_front.jpg)
Criminal law involves the
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
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,
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
s can result in
incarceration
Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is "false imprisonment". Imprisonment does not necessari ...
, 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
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
), such as
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
and
rape
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ag ...
, although penalties for these crimes may vary from state to state.
Capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
is permitted in some states but not others.
Three strikes law
In the United States, habitual offender laws (commonly referred to as three-strikes laws) have been implemented since at least 1952, and are part of the United States Justice Department's Anti-Violence Strategy. These laws require a person who i ...
s in certain states impose harsh penalties on repeat offenders.
Some states distinguish between two levels: felonies and
misdemeanor
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
s (minor crimes).
Generally, most felony convictions result in lengthy
prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, correc ...
sentences as well as subsequent
probation
Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration.
In some jurisdictions, the term ''probation'' applies only to community sentences (alternatives to incarceration), such ...
, large
fines Fines may refer to:
*Fines, Andalusia, Spanish municipality
*Fine (penalty)
* Fine, a dated term for a premium on a lease of land, a large sum the tenant pays to commute (lessen) the rent throughout the term
*Fines, ore or other products with a sma ...
, and orders to pay
restitution
The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
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,
infraction
A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
Canada
In Canada, summary offen ...
s. These may result in fines and sometimes the loss of one's driver's license, but no jail time.
On average, only three percent of criminal cases are resolved by jury trial; 97 percent are terminated either by
plea bargaining
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or '' nolo contendere.'' This may mean that the defend ...
or dismissal of the charges.
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
Drunk driving (or drink-driving in British English) is the act of driving under the influence of alcohol. A small increase in the blood alcohol content increases the relative risk of a motor vehicle crash.
In the United States, alcohol is invo ...
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
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
.
The law of
criminal procedure
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
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
In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be consider ...
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
In the United States, the ''Miranda'' warning is a type of notification customarily given by police to criminal suspects in police custody (or in a custodial interrogation) advising them of their right to silence and, in effect, protection fr ...
. The writ of ''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'' is often used by suspects and convicts to challenge their detention, while the
Third Enforcement Act
The Enforcement Act of 1871 (), also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871, is an Act of the United States Congress which empowered the President to suspend t ...
and ''
Bivens'' actions are used by suspects to recover tort damages for police brutality.
Civil procedure
The law of
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law
pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudi ...
was replaced by code pleading in 24 states after New York enacted the
Field Code
David Dudley Field II (February 13, 1805April 13, 1894) was an American lawyer and law reformer who made major contributions to the development of American civil procedure. His greatest accomplishment was engineering the move away from common ...
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
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
courts was abolished in the federal courts by the adoption of the
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
in 1938; it has also been independently abolished by legislative acts in nearly all states. The
Delaware Court of Chancery
The Delaware Court of Chancery is a court of equity in the American state of Delaware. It is one of Delaware's three constitutional courts, along with the Supreme Court and Superior Court. Since 2018, the court consists of seven judges. The chi ...
is the most prominent of the small number of remaining equity courts.
Thirty-five states have adopted rules of civil procedure modeled after the FRCP (including rule numbers). However, in doing so, they had to make some modifications to account for the fact that state courts have broad general jurisdiction while federal courts have relatively limited jurisdiction.
New York, Illinois, and California are the most significant states that have not adopted the FRCP. Furthermore, all three states continue to maintain most of their civil procedure laws in the form of codified statutes enacted by the state legislature, as opposed to court rules promulgated by the state supreme court, on the ground that the latter are undemocratic. But certain key portions of their civil procedure laws have been modified by their legislatures to bring them closer to federal civil procedure.
Generally, American civil procedure has several notable features, including extensive pretrial
discovery
Discovery may refer to:
* Discovery (observation), observing or finding something unknown
* Discovery (fiction), a character's learning something unknown
* Discovery (law), a process in courts of law relating to evidence
Discovery, The Discovery ...
, heavy reliance on live testimony obtained at
deposition or elicited in front of a
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is,
summary judgment
In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes ...
) or a settlement. U.S. courts pioneered the concept of the opt-out
class action
A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class actio ...
, by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called
American Rule under which parties generally bear their own attorneys' fees (as opposed to the
English Rule In the field of law and economics, the English rule is a rule controlling assessment of lawyers' fees arising out of litigation. The English rule provides that the party that loses in court pays the other party's legal costs. The English rule cont ...
of "loser pays"), though American legislators and courts have carved out numerous exceptions.
Contract law
Contract law
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
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
The Restatement (Second) of the Law of Contracts is a legal treatise from the second series of the Restatements of the Law, and seeks to inform judges and lawyers about general principles of contract common law. It is one of the best-recognized and ...
.
Parties are permitted to agree to
arbitrate disputes arising from their contracts. Under the
Federal Arbitration Act
The United States Arbitration Act (, codified at ), more commonly referred to as the Federal Arbitration Act or FAA, is an act of Congress that provides for judicial facilitation of private dispute resolution through arbitration. It applies in bo ...
(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
Unconscionability (sometimes known as unconscionable dealing/conduct in Australia) is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining ...
or
fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...
or something else which undermines the entire contract.
Tort law
![Restatement Second of Torts](https://upload.wikimedia.org/wikipedia/commons/2/28/Restatement_Second_of_Torts.jpg)
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. This broad family of civil wrongs involves interference "with person, property, reputation, or commercial or social advantage."
Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and partially overlaps with wrongs also punishable by criminal law. It is primarily a matter of state law and is usually developed through case law from state appellate courts; it is rarely a matter of federal law, and tort-related statutes are focused on discrete issues like authorizing
wrongful death claim
Wrongful death claim is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. In wrongful death cases, survivors are compensated for the harm, l ...
s (which did not exist at common law).
Although the American 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, American tort law cannot be easily summarized.
For example, a few jurisdictions allow actions for
negligent infliction of emotional distress
The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has ...
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."
Notably, the most broadly influential innovation of 20th-century American tort law was the rule of
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
...
for
defective products, which originated with judicial glosses on the law of
warranty
In contract law, a warranty is a promise which is not a condition of the contract or an innominate term: (1) it is a term "not going to the root of the contract",Hogg M. (2011). ''Promises and Contract Law: Comparative Perspectives''p. 48 Cambrid ...
. In 1963,
Roger J. Traynor
Roger John Traynor (February 12, 1900 – May 14, 1983) was the 23rd Chief Justice of California (1964-1970) and an associate justice of the Supreme Court of California from 1940 to 1964. Previously, he had served as a Deputy Attorney General of ...
of the
Supreme Court of California
The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacra ...
threw away
legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
s based on warranties and imposed strict liability for defective products as a matter of
public policy
Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
in the landmark case of ''Greenman v. Yuba Power Products''. The American Law Institute subsequently adopted a slightly different version of the ''Greenman'' rule in Section 402A of the ''Restatement (Second) of Torts'', which was published in 1964 and was very influential throughout the United States. Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985, by Australia in July 1992, and by Japan in June 1994.
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: Products Liability''.
Property law
Historically,
American property law has been heavily influenced by
English land law
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
,
and is therefore concerned with
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
first and
personal property
property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved fr ...
second.
It is also primarily a matter of state law, and the level of interstate diversity in the law of property is much more substantial than in contract and tort.
In the 1970s, the
Uniform Law Commission
The Uniform Law Commission (ULC), also called the National Conference of Commissioners on Uniform State Laws, is a non-profit, American unincorporated association. Established in 1892, the ULC aims to provide U.S. states (plus the District of Co ...
's project to standardize state real property law was a spectacular failure.
[Peter B. Maggs]
''The Uniform Simplification of Land Transfers Act and the Politics and Economics of Law Reform,''
20 Nova L. Rev. 1091, 1091–92 (1996). The majority of states use a
title recording system (coupled with privately provided
title insurance
Title insurance is a form of indemnity insurance predominantly found in the United States and Canada which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans. Unlike ...
) to manage title to real property, although
title registration
Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence (termed " indefeasibility") of title of the person recorded on the registe ...
(''Torrens'' title) is also allowed in a small minority of states.
Title to personal property is usually not registered, with the notable exceptions of
motor vehicle
A motor vehicle, also known as motorized vehicle or automotive vehicle, is a self-propelled land vehicle, commonly wheeled, that does not operate on Track (rail transport), rails (such as trains or trams) and is used for the transportation of pe ...
s (through a state
department of motor vehicles or equivalent), bicycles (in certain cities and counties), and
some types of firearms (in certain states).
Family law
In the United States, family law governs relationships between adults, and relationships between parents and their children.
As a discrete area of law worthy of its own specialists and law professors, American family law is relatively young in comparison to European family law; it did not take flight until the
no-fault divorce
In a no-fault divorce the dissolution of a marriage does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage w ...
revolution of the 1960s.
Before the 1950s, widespread religious, legal, and social prohibitions against
divorce in the United States
Divorce in the United States is a legal process in which a judge or other authority dissolves the marriage existing between two persons. Divorce restores the persons to the status of being single and permits them to marry other individuals. In t ...
meant that divorces were rare, were often seen as fact-driven matters (meaning that they were perceived as turning on each case's facts and not broadly generalizable legal principles), and rarely went up on appeal.
The rise of no-fault divorce caused divorce litigation to shift away from the question of who was at fault for the collapse of the marital relationship and to focus instead on issues such as
division of property
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce. It may be done by agreement, through a property settlement, or by judicial decree.
Distributio ...
,
spousal support
Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), is a legal obligation on a person to provide financial suppo ...
, and
child support
Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian) following the end of a marriage or other similar relationship. Child maintenance is paid d ...
.
Family cases are traditionally a matter of state law and are virtually always heard only in state courts.
Certain kinds of contract, tort, and property civil actions involving state law issues can be heard in federal courts under diversity jurisdiction, but federal courts decline to hear family cases under the "domestic relations exception" to diversity jurisdiction.
Although family cases are heard in state courts, there has been a trend towards federalization of certain specific issues in family law. State courts and the lawyers who practice before them must be aware of federal income tax and bankruptcy implications of a divorce judgment, federal constitutional rights to abortion and paternity, and federal statutes governing interstate child custody disputes and interstate child support enforcement.
See also
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Admission to the bar in the United States
Admission to the bar in the United States is the granting of permission by a particular court system to a lawyer to practice law in the jurisdiction and before those courts. Each U.S. state and similar jurisdiction (e.g. territories under fe ...
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Attorneys in the United States
An attorney at law (or attorney-at-law) in the United States is a practitioner in a court of law who is legally qualified to prosecute and defend actions in court on the retainer of clients. Alternative terms include counselor (or counsellor-at-l ...
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Black's Law Dictionary
''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary.
History
The first edition was published in 1891 by West P ...
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Courts of the United States
The courts of the United States are closely linked hierarchical systems of courts at the federal and state levels. The federal courts form the judicial branch of the US government and operate under the authority of the United States Constitution an ...
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Legal education in the United States
Legal education in the United States generally refers to a graduate degree, the completion of which makes a graduate eligible to sit for an examination for a license to practice as a Lawyer. Around 60 percent of those who complete a law degree ty ...
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Law school in the United States
A law school in the United States is an educational institution where students obtain a professional education in law after first obtaining an undergraduate degree.
Law schools in the U.S. confer the degree of Juris Doctor (J.D.), which is a p ...
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Legal systems of the world
The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and ...
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Privacy laws of the United States
Privacy laws of the United States deal with several different legal concepts. One is the ''invasion of privacy'', a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into thei ...
Lists
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Legal research in the United States
Legal research is the process of identifying and retrieving information to support legal arguments and decisions. Finding relevant legal information can be challenging and may involve the use of electronic research tools as well as printed books ...
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List of sources of law in the United States Federal
*Constitution of the United States
Statutes
* List of United States federal legislation
Acts listed by popular name via Cornell University
* United States Statutes at Large
*Volumes 1 through 18, 1789–1875 via Library of Congress
* Pu ...
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List of Uniform Acts (United States)—intended for state-level legislation
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List of United States federal legislation
This is a chronological, but still incomplete, list of United States federal legislation. Congress has enacted approximately 200–600 statutes during each of its 115 biennial terms so that more than 30,000 statutes have been enacted since 1789.
A ...
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List of United States Supreme Court cases
This page serves as an index of lists of United States Supreme Court cases. The United States Supreme Court is the highest federal court of the United States.
By Chief Justice
Court historians and other legal scholars consider each Chief J ...
References
Further reading
* Friedman, Lawrence M. ''American Law'' (1984)
* Hadden, Sally F. and Brophy, Alfred L. (eds.), ''A Companion to American Legal History.'' Malden, MA: Wiley-Blackwell, 2013.
* Hall, Kermit L. et al. eds. ''The Oxford Companion to American Law'' (2002
excerpt and text search*
Legal history
* Edwards, Laura F. ''A Legal History of the Civil War and Reconstruction: A Nation of Rights'' (Cambridge University Press, 2015) 212 pp.
* Friedman, Lawrence M. ''A History of American Law'' (3rd ed. 2005) 640 pp
* Friedman, Lawrence M. ''American Law in the Twentieth Century'' (2002)
*
Hall, Kermit L. ''The Magic Mirror: Law in American History'' (1989)
* Hall, Kermit L. et al. ''American Legal History: Cases and Materials'' (2010); 752 pages
* Horwitz, Morton J. ''The transformation of American law: 1780–1860'' (1977)
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Hovenkamp, Herbert ''The Opening of American Law: Neoclassical Legal Thought, 1870–1970'' (2015)
* Horwitz, Morton J. ''The transformation of American law, 1870–1960: the crisis of legal orthodoxy (1994)
* Howe, Mark de Wolfe, ed. ''Readings in American Legal History'' (2001) 540pp
* Johnson, Herbert A. ''American legal and constitutional history: cases and materials'' (2001) 733 pp
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*Schwartz, Bernard. ''The Law in America''. (Evolution of American legal institutions since 1790). (1974).
Colonial
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Lawyers
* Abel, Richard L. ''American Lawyers'' (1991)
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Chroust, Anton-Hermann. ''The Rise of the legal profession in America'' (2 vol 1965), to 1860
* Drachman, Virginia G. ''Sisters in Law: Women Lawyers in Modern American History'' (2001)
*Nizer, Louis. ''
My Life in Court
''My Life in Court'' is a 1961 memoir by American trial lawyer Louis Nizer documenting his career in law. The work was a best seller when it was first released, lasting for 72 weeks on ''The New York Times'' Bestsellers list.
Background
The boo ...
''. (1978) Popular description of a lawyer's practice
* Vile, John R. ''Great American lawyers: an encyclopedia'' (2001)
* Vile, John R. ''Great American judges: an encyclopedia'' (2003)
* Wortman, Marlene Stein. ''Women in American Law: From colonial times to the New Deal'' (1985)
Philosophy of law
*Cardozo, Benjamin N., ed. ''An Introduction to Law''. (1957). (Essays by eight distinguished American judges)
*Hart, H.L.A. ''The Concept of Law''. (1961). (Introductory text on the nature of law)
*Llewellyn, Karl N. "The Bramble Bush," in ''Karl N. Llewellyn on Legal Realism''. (1986). (Introductory text on the nature of law)
*Pound, Roscoe. ''Social Control Through Law''. (Nature of law and its role in society). (1942)
External links
Official U.S. Government page on Laws and Legal IssuesOfficial U.S. Government page for U.S. federal courtsTexts of U.S. federal laws and U.S. state lawsU.S. Code collectionat Cornell University's Legal Information Institute
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