Origins of American Law

Common Law

Law of the United States was mainly derived from the common law system of English law.

Learning Objectives

Identify the principles and institutions that comprise the common law tradition

Key Takeaways

Key Points

  • The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were specificilly outlawed by the Constitution, such as bills of attainder and general search warrants.
  • 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.
  • Unlike the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors.
  • The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law. As a result, the laws of any given state invariably differ from the laws of its sister states.

Key Terms

  • stare decisis: The principle of following judicial precedent.
  • heir: Someone who inherits, or is designated to inherit, the property of another.

Background

At both the federal and state levels, the law of the United States was mainly derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure. It has incorporated a number of civil law innovations.

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Royal Courts of Justice: The neo-medieval pile of the Royal Courts of Justice on G.E. Street, The Strand, London.

American Common Law

The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were specifically outlawed by the Constitution, such as bills of attainder and general search warrants.

As common law courts, U.S. courts have inherited the principle of stare decisis. American judges, like common law judges elsewhere, not only apply the law, they also make the law. Their decisions in the cases before them became the 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. Therefore, 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. An example is the heightened duty of care that was traditionally imposed upon common carriers.

Federal courts lack the plenary power possessed by state courts to simply make up law. State courts are able to do this in the absence of constitutional or statutory provisions replacing the common law. Only in a few 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).

Federal Precedent

Unlike the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts. However, it is universally accepted that the Founding Fathers of the United States, by vesting judicial power into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, vested in them the implied judicial power of common law courts to formulate persuasive precedent. This power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified. Several legal scholars have argued that the federal judicial power to decide “cases or controversies” necessarily includes the power to decide the precedential effect of those cases and controversies.

State Law

The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law. As a result, the laws of any given state invariably differ from the laws of its sister states. Therefore, with regard to the vast majority of areas of the law that are traditionally managed by the states, the United States cannot be classified as having one legal system. Instead, it must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on. Naturally, the laws of different states frequently come into conflict with each other. In response, a very large body of law was developed to regulate the conflict of laws in the United States.

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 state statutes, regulations, and local ordinances.

In some states, codification is often treated as a mere restatement of the common law. This occurs to the extent that the subject matter of the particular statute at issue was covered by some judge-made principle at common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature. In other states, there is a tradition of strict adherence to the plain text of the codes.

Primary Sources of American Law

The primary sources of American Law are: constitutional law, statutory law, treaties, administrative regulations, and the common law.

Learning Objectives

Identify the sources of American federal and state law

Key Takeaways

Key Points

  • Where Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid. A statute does not disappear automatically merely because it has been found unconstitutional; a subsequent statute must delete it.
  • The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder and general search warrants.
  • Early American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges used English legal materials to fill the gap.
  • 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.
  • Most U.S. law consists primarily of state law, which can and does vary greatly from one state to the next.

Key Terms

  • commonwealth: A form of government, named for the concept that everything that is not owned by specific individuals or groups is owned collectively by everyone in the governmental unit, as opposed to a state, where the state itself owns such things.

Background

In the United States, the law is derived from various sources. These sources are constitutional law, statutory law, treaties, administrative regulations, and the common law. At both the federal and state levels, 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. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations. Thus, most U.S. law consists primarily of state law, which can and does vary greatly from one state to the next.

Constitutionality

Where Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid. A statute does not disappear automatically merely because it has been found unconstitutional; a subsequent statute must delete it. 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 the Supreme Court will reverse any court that does so. 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

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. Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carriers.

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.

However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other’s rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.

Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap. 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. 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 was already complaining: “Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already. ”

Today, in the words of Stanford law professor Lawrence Friedman: 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 merely as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.

Civil Law and Criminal Law

Criminal law is the body of law that relates to crime and civil law deals with disputes between organizations and individuals.

Learning Objectives

Compare and contrast civil law with common law

Key Takeaways

Key Points

  • The objectives of civil law are different from other types of law. In civil law there is the attempt to right a wrong, honor an agreement, or settle a dispute.
  • Criminal law is the body of law that relates to crime. It is the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people.
  • In civil law there is the attempt to right a wrong, honor an agreement, or settle a dispute. If there is a victim, they get compensation, and the person who is the cause of the wrong pays, this being a civilized form of, or legal alternative to, revenge.
  • For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states.

Key Terms

  • equity: A legal tradition that deals with remedies other than monetary relief, such as injunctions, divorces and similar actions.
  • criminal law: the area of law that regulates social conduct, prohibits threatening, harming, or otherwise endangering the health, safety, and moral welfare of people, and punishes people who violate these laws
  • incarceration: The act of confining, or the state of being confined; imprisonment.

Background

Criminal law is the body of law that relates to crime. It is the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people. Criminal law also sets out the punishment to be imposed on people who do not obey these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution than in punishment.

Civil law is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case. Civil law differs from criminal law, which emphasizes punishment rather than dispute resolution. The law relating to civil wrongs and quasi-contract is part of civil law.

Civil Law Versus Criminal Law

The objectives of civil law are different from other types of law. In civil law there is the attempt to right a wrong, honor an agreement, or settle a dispute. If there is a victim, they get compensation, and the person who is the cause of the wrong pays, this being a civilized form of, or legal alternative to, revenge. If it is a matter of equity, there often exists a pie for division and a process of civil law which allocates it. In public law the objective is usually deterrence and retribution.

An action in criminal law does not necessarily preclude an action in civil law in common law countries, and may provide a mechanism for compensation to the victims of crime. Such a situation occurred when O.J. Simpson was ordered to pay damages for wrongful death after being acquitted of the criminal charge of murder.

Criminal law involves the prosecution by the state of wrongful acts, which are considered to be so serious that they are a breach of the sovereign’s peace (and cannot be deterred or remedied by mere lawsuits between private parties). Generally, crimes can result in incarceration, but torts (see below) cannot. The majority of the crimes committed in the United States are prosecuted and punished at the state level. Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud.

All states have somewhat similar laws in regard to “higher crimes” (or felonies), such as murder and rape, although penalties for these crimes may vary from state to state. Capital punishment is permitted in some states but not others. Three strikes laws in certain states impose harsh penalties on repeat offenders.

Some states distinguish between two levels: felonies and misdemeanors (minor crimes). Generally, most felony convictions result in lengthy prison sentences as well as subsequent probation, large fines, and orders to pay restitution directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, infractions. These may result in fines and sometimes the loss of one’s driver’s license, but no jail time.

For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious felony.

The law of most of the states is based on the common law of England; the notable exception is Louisiana. Much of Louisiana law is derived from French and Spanish civil law, which stems from its history as a colony of both France and Spain. Puerto Rico, a former Spanish colony, 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.

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California Penal Code: The California Penal Code, the codification of criminal law and procedure in the U.S. state of California.

Basic Judicial Requirements

In the judiciary system each position within the federal, state and local government has different types of requirements.

Learning Objectives

Identify the type and structure of courts that make up the U.S. federal court system

Key Takeaways

Key Points

  • In federal legislation, regulations governing the “courts of the United States ” only refer to the courts of the United States government, and not the courts of the individual states.
  • State courts may have different names and organization; trial courts may be called courts of common plea and appellate courts “superior courts” or commonwealth courts.
  • The U.S. federal court system hears cases involving litigants from two or more states, violations of federal laws, treaties, and the Constitution, admiralty, bankruptcy, and related issues. In practice, about 80% of the cases are civil and 20% are criminal.
  • Federal courts may not decide every case that happens to come before them. In order for a district court to entertain a lawsuit, Congress must first grant the court subject matter jurisdiction over the type of dispute in question.
  • In addition to their original jurisdiction, the district courts have appellate jurisdiction over a very limited class of judgments, orders, and decrees.
  • A final ruling by a district court in either a civil or a criminal case can be appealed to the United States court of appeals in the federal judicial circuit in which the district court is located, except that some district court rulings involving patents and certain other specialized matters.

Key Terms

  • appeal: (a) An application for the removal of a cause or suit from an inferior to a superior judge or court for re-examination or review. (b) The mode of proceeding by which such removal is effected. (c) The right of appeal. (d) An accusation; a process which formerly might be instituted by one private person against another for some heinous crime demanding punishment for the particular injury suffered, rather than for the offense against the public. (e) An accusation of a felon at common law by one of his accomplices, which accomplice was then called an approver.
  • original jurisdiction: the power of a court to hear a case for the first time

Background

In federal legislation, regulations governing the “courts of the United States” only refer to the courts of the United States government, and not the courts of the individual states. Because of the federalist underpinnings of the division between federal and state governments, the various state court systems are free to operate in ways that vary widely from those of the federal government, and from one another. In practice, however, every state has adopted a division of its judiciary into at least two levels, and almost every state has three levels, with trial courts hearing cases which may be reviewed by appellate courts, and finally by a state supreme court. A few states have two separate supreme courts, with one having authority over civil matters and the other reviewing criminal cases. State courts may have different names and organization; trial courts may be called “courts of common plea” and appellate courts “superior courts” or “commonwealth courts. ” State courts hear about 98% of litigation; most states have special jurisdiction courts, which typically handle minor disputes such as traffic citations, and general jurisdiction courts, which handle more serious disputes.

The U.S. federal court system hears cases involving litigants from two or more states, violations of federal laws, treaties, and the Constitution, admiralty, bankruptcy, and related issues. In practice, about 80% of the cases are civil and 20% are criminal. The civil cases often involve civil rights, patents, and Social Security while the criminal cases involve tax fraud, robbery, counterfeiting, and drug crimes. The trial courts are U.S. district courts, followed by United States courts of appeals and then the Supreme Court of the United States. The judicial system, whether state or federal, begins with a court of first instance, whose work may be reviewed by an appellate court, and then ends at the court of last resort, which may review the work of the lower courts.

Jurisdiction

Unlike some state courts, the power of federal courts to hear cases and controversies is strictly limited. Federal courts may not decide every case that happens to come before them. In order for a district court to entertain a lawsuit, Congress must first grant the court subject matter jurisdiction over the type of dispute in question. Though Congress may theoretically extend the federal courts’ subject matter jurisdiction to the outer limits described in Article III of the Constitution, it has always chosen to give the courts a somewhat narrower power.

For most of these cases, the jurisdiction of the federal district courts is concurrent with that of the state courts. In other words, a plaintiff can choose to bring these cases in either a federal district court or a state court. Congress has established a procedure whereby a party, typically the defendant, can remove a case from state court to federal court, provided that the federal court also has original jurisdiction over the matter. Patent and copyright infringement disputes and prosecutions for federal crimes, the jurisdiction of the district courts is exclusive of that of the state courts.

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US Court of Appeals and District Court Map: Courts of Appeals, with the exception of one, are divided into geographic regions known as circuits that hear appeals from district courts within the region..

Attorneys

In order to represent a party in a case in a district court, a person must be an Attorney At Law and generally must be admitted to the bar of that particular court. The United States usually does not have a separate bar examination for federal practice (except with respect to patent practice before the United States Patent and Trademark Office). Admission to the bar of a district court is generally granted as a matter of course to any attorney who is admitted to practice law in the state where the district court sits. Many district courts also allow an attorney who has been admitted and remains an active member in good standing of any state, territory or the District of Columbia bar to become a member. The attorney submits his application with a fee and takes the oath of admission. Local practice varies as to whether the oath is given in writing or in open court before a judge of the district.

Several district courts require attorneys seeking admission to their bars to take an additional bar examination on federal law, including the following: the Southern District of Ohio, the Northern District of Florida, and the District of Puerto Rico.

Appeals

Generally, a final ruling by a district court in either a civil or a criminal case can be appealed to the United States court of appeals in the federal judicial circuit in which the district court is located, except that some district court rulings involving patents and certain other specialized matters must be appealed instead to the United States Court of Appeals for the Federal Circuit, and in a very few cases the appeal may be taken directly to the United States Supreme Court.