Other Sources of Law
The most obvious sources of American law are the statutes passed by
Congress, as supplemented by administrative regulations. Sometimes these
demarcate clearly the boundaries of
legal and illegal conduct — the bank
robbery example again — but no
government can promulgate enough
law to cover every situation. Fortunately, another body of legal principles and norms helps fill in the gaps,
as explained below
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 in volume and
explanatory reach.
INTRODUCTION 13
*The U.S. Circuit Court for the Second
Circuit is an appellate court that hears
appeals from the federal district courts in the
states of New York, Connecticut, and
Vermont. The Fourth Circuit encompasses
Maryland, North Carolina, South Carolina,
Virginia, and West Virginia, and the Eleventh
Alabama, Georgia, and Florida. For more
information on the organization of the
federal courts, see chapter 1.
**The numbers in this sentence comprise
the citation to the Balsys decision. They
indicate that the Court issued its ruling in the
year 1998 and that the decision appears in
volume 524 of a series called United States
Reports, beginning on page 666.
