Every business day, courts throughout
the United States render decisions that
together affect many thousands of
people. Some affect only the parties to
a particular legal action, but others adjudicate rights, benefits, and legal
principles that have an impact on virtually all Americans. Inevitably, many
Americans may welcome a given ruling while others — sometimes many
others — disapprove. All,
however, accept the legitimacy of these decisions,
and of the courts’ role as final interpreter of the law. There can be no
more potent demonstration of the
trust that Americans place in the rule
of law and their confidence in the U.S.
legal system.
The pages that follow survey that
system. Much of the discussion explains how U.S. courts are organized
and how they work. Courts are central
to the legal system, but they are not
the entire system. Every day across
America, federal, state,
and local
courts interpret laws, adjudicate disputes under laws, and at times even
strike down laws as violating the fundamental protections that the Constitution guarantees all Americans.
At
the same time, millions of Americans
transact their day-to-day affairs without turning to the courts. They, too,
rely upon the legal system. The young
couple purchasing their first home,
two businessmen entering into a contract, parents drawing up a will to provide for their children
the predictability and enforceable
common norms that the rule of law
provides and the U.S. legal system
guarantees.
This introduction seeks to familiarize readers with the basic structure
and vocabulary of American law.
Subsequent chapters add detail, and
afford a sense of how the U.S. legal
system has evolved to meet the
needs of a growing nation and its
ever more complex economic and
social realities.
A FEDERAL LEGAL SYSTEM:
Overview
The American legal system has
several layers, more possibly
than in most other nations.
One reason is the division between
federal and state law. To understand
this, it helps to recall that the United
States was founded not as one nation,
but as a union of 13 colonies, each
claiming independence from the
British Crown. The Declaration of
Independence (1776) thus spoke of
“the good People of these Colonies”
but also pronounced that “these
United Colonies are, and of Right
ought to be, FREE AND INDEPENDENT STATES.” The tension between
one people and several states is a
perennial theme in American legal
history. As explained below, the U.S.
Constitution (adopted 1787, ratified
1788) began a gradual and at times
hotly contested shift of power and
legal authority away from the states
and toward the federal government.
Still, even today states retain substantial authority. Any student of the
American legal system must understand how jurisdiction is apportioned
between the federal government and
the states.
The Constitution fixed many of the
boundaries between federal and state
law. It also divided federal power
among legislative, executive, and judicial branches of government (thus
creating a “separation of powers”
between each branch and enshrining
a system of “checks-and-balances”
to prevent any one branch from
overwhelming the others), each of
which contributes distinctively to the
legal system. Within that system, the
Constitution delineated the kinds of
laws that Congress might pass.
As if this were not sufficiently complex, U.S. law is more than the statutes
passed by Congress. In some areas,
Congress authorizes administrative
agencies to adopt rules that add detail
to statutory requirements. And the
entire system rests upon the traditional legal principles found in English
Common Law. Although both the
Constitution and statutory law supersede common law, courts continue
to apply unwritten common law
principles to fill in the gaps where the
Constitution is silent and Congress
has not legislated.
SOURCES OF FEDERAL LAW
The United States Constitution
Supremacy of Federal Law
During the period 1781–88, an
agreement called the Articles
of Confederation governed
relations among the 13 states. It established a weak national Congress and
left most authority with the states.
The
Articles made no provision for a federal judiciary, save a maritime court, although each state was enjoined to
honor (afford “full faith and credit”
to) the rulings of the others’ courts.
The drafting and ratification of
the Constitution reflected a growing
consensus that the federal government
needed to be strengthened. The legal
system was one of the areas where
this was done. Most significant was
the “supremacy clause,” found in
Article VI:
This Constitution,
and the Laws of
the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be
made, under the Authority of the
United States, shall be the supreme
Law of the Land; and the Judges in
every State shall be bound thereby,
any Thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.
federal Constitution speaks, no state
may contradict it. Left unclear was
how this prohibition might apply to
the federal government itself, and the
role of the individual state legal systems in areas not expressly addressed
by the new Constitution.
Amendments would supply part of the answer, history still more, but even today
Americans continue to wrestle with
the precise demarcations between the
federal and state domains.
Each Branch Plays a Role in the
Legal System
While the drafters of the Constitution
sought to strengthen the federal government,
branches. As James Madison explained
in Federalist No. 51, “usurpations are
guarded against by a division of the
government into distinct and separate
departments.” Each of Madison’s “departments,” legislative, executive, and
judiciary, received a measure of
influence over the legal system.
Legislative
The Constitution vests in Congress the
power to pass legislation. A proposal
considered by Congress is called a bill.
If a majority of each house of Congress — two-thirds should the President veto it — votes to adopt a bill, it
becomes law. Federal laws are known
as statutes. The United States Code is a
“codification” of federal statutory law.
The Code is not itself a law, it merely
presents the statutes in a logical
arrangement. Title 20, for instance,
contains the various statutes pertaining to Education, and Title 22 those
covering Foreign Relations.
Congress’ lawmaking power is limited. More precisely, it is delegated by
the American people through the
Constitution, which specifies areas
where Congress may or may not legislate. Article I, Section 9 of the Constitution forbids Congress from passing
certain types of laws. Congress may
not, for instance, pass an “ex post facto”
law (a law that applies retroactively, or
“after the fact”), or levy a tax on exports. Article I, Section 8 lists areas
where Congress may legislate. Some of
these (“To establish Post Offices”) are
quite specific but others, most notably,
“To regulate Commerce with foreign
Nations, and among the several States,”
are less so. Obviously the power to interpret the less precise delegations is
extremely important. Early in the
young republic’s history, the judiciary
branch assumed this role and thus secured an additional and extremely
vital role in the U.S. legal system.
Judicial
As with the other branches, the U.S.
judiciary possesses only those powers
the Constitution delegates.
The Constitution extended federal jurisdiction
only to certain kinds of disputes. Article III, Section 2 lists them. Two of the
most significant are cases involving a
question of federal law (“all Cases in
Law and Equity, arising under this
Constitution, the Laws of the United
States, and Treaties made…”) and “diversity” cases, or disputes between citizens of two different states. Diversity
jurisdiction allows each party to avoid
litigating his case before the courts of
his adversary’s state.
A second judicial power emerged in
the Republic’s early years. As explained
in Chapter 2, the U.S. Supreme Court
in the case of Marbury v. Madison
(1803) interpreted its delegated powers to include the authority to determine whether a statute violated the
Constitution and, if it did, to declare
such a law invalid. A law may be unconstitutional because it violates rights
guaranteed to the people by the Constitution -
or because Article I did not
authorize Congress to pass that kind
of legislation.
The power to interpret the constitutional provisions that describe
where Congress may legislate is thus
very important. Traditionally, Congress has justified many statutes as
necessary to regulate “commerce…
among the several States,” or interstate
commerce. This is an elastic concept,
difficult to describe with precision. Indeed, one might for nearly any statute
devise a plausible tie between its objectives and the regulation of interstate
commerce. At times, the judicial
branch interpreted the “commerce
clause” narrowly. In 1935, for instance,
the Supreme Court invalidated a
federal law regulating the hours and
wages of workers at a New York
slaughterhouse because the chickens
processed there all were sold to New
York butchers and retailers and hence
not part of interstate commerce. Soon
after this, however, the Supreme Court
began to afford President Franklin D.
Roosevelt’s New Deal programs more
latitude, and today the federal courts
continue to interpret broadly the
commerce power, although not so
broadly as to justify any legislation congress might pass
they feared strengthening it
too much. One means of restraining
the new regime was to divide it into executive branch consisted of the
President, Vice President, and the
Departments of State, Treasury, War,
and Justice. As the nation grew, the executive branch grew with it. Today
there are 15 Cabinet-level Departments. Each houses a number of
Bureaus, Agencies, and other entities.
Still other parts of the executive
branch lie outside these Departments.
All exercise executive power delegated
by the President and thus are responsible ultimately to him.
In some areas, the relationship between the executive and the other two
branches is clear. Suppose one or more
individuals rob a bank. Congress has
passed a statute criminalizing bank
robbery (United States Code, Title 18,
Section 2113*). The Federal Bureau
of Investigation (FBI), a bureau within
the Department of Justice, would
investigate the crime. When it apprehended one or more suspects, a
Federal Prosecutor (also Department
of Justice) would attempt to prove the
suspect’s guilt in a trial conducted by a
U.S. District Court.
Common Law
Where no statute or constitutional
provision controls, both federal and
state courts often look to the common
law, a collection of judicial decisions,
customs, and general principles that
began centuries ago in England and
continues to develop today. In many
states, common law continues to hold
an important role in contract disputes, as state legislatures have not
12 OUTLINE OF THE U.S. LEGAL SYSTEM
seen fit to pass statutes covering every
possible contractual contingency.
Judicial Precedent
Courts adjudicate alleged violations
of and disputes arising under the
law. This often requires that they
interpret the law. In doing so,
courts
consider themselves bound by how
other courts of equal or superior rank
have previously interpreted a law.
This is known as the principle of
“stare decisis,” or simply precedent. It
helps to ensure consistency and
predictability. Litigants facing unfavorable precedent, or case law, try
to distinguish the facts of their particular case from those that produced
the earlier decisions.
Sometimes courts interpret the
law differently. The Fifth Amendment
to the Constitution, for instance,
contains a clause that “[n]o person…
shall be compelled in any criminal
case to be a witness against himself.”
From time to time, cases arose where
an individual would decline to answer
a subpoena or otherwise testify on
the grounds that his testimony might
subject him to criminal prosecution
— not in the United States but in
another country. Would the selfincrimination clause apply here? The
U.S. Court of Appeals for the Second
Circuit ruled it did, but the Fourth
and Eleventh Circuits held that it
did not.* This effectively meant that
the law differed depending where
in the country a case arose!
Higher-level courts try to resolve
these inconsistencies. The Supreme
Court of the United States, for instance, often chooses to hear a case
when its decision can resolve a division among the Circuit courts. The
Supreme Court precedent will control, or apply to all the lower federal
courts. In United States v. Balsys, 524
U.S. 666 (1998), the Supreme Court
ruled that fear of foreign prosecution
is beyond the scope of the SelfIncrimination Clause.
**
This ruling became the law of the
entire nation, including the Second
Circuit. Any federal court subsequently facing the issue was bound by the
high court ruling in Balsys. Circuit
court decisions similarly bind all the
District Courts within that circuit.
Stare decisis also applies in the various
state court systems. In this way, precedent grows both volume and explanatory reach