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
