Law of the United States

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The law of the United States is derived from the common law of the United Kingdom, which was in force at the time of the Revolutionary War. However, the supreme law of the land in the United States is the United States Constitution and, per the Constitution, treaties to which the U.S. is a party. These form the basis for federal laws under the federal constitution in the United States, circumscribing the boundaries of the jurisdiction of federal law and the laws in the fifty U.S. states and territories.


American common law

Although the U.S. and most Commonwealth nations are heirs to the common law legal tradition, American law tends to be unique in many ways. This is because the American legal system was severed from the British system by the Revolution, and afterwards, it evolved independently from the British Commonwealth legal systems. Therefore, when attempting to trace the development of traditional judge-made common law principles (that is, the few that have not already been overridden by newer laws), American courts will look at British cases only up to the early 19th century.

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. The earliest American cases, even after the Revolution, often did cite contemporary British cases, but such citations gradually disappeared during the first half of the 19th century as American courts developed their own homegrown principles to resolve the legal problems of the American people. Today, the vast majority of American legal citations are to domestic cases. Sometimes, courts (and casebook editors) do make exceptions for opinions on issues of first impression by brilliant British jurists, like Lord Denning.

Some adherents of originalism and strict constructionism (e.g., Antonin Scalia) argue that American courts should never look for guidance to post-Revolution cases from legal systems outside of the United States (regardless of whether the reasoning is persuasive), with the sole exception of cases interpreting international treaties to which the U.S. is a signatory.

Federal law

Federal law in the United States originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating commerce. Nearly all statutes have been codified in the United States Code. Many statutes give executive branch agencies the power to create regulations, which are published in the Code of Federal Regulations and also carry the force of law. 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.

State law

As for state law in the United States, American states are separate sovereigns with their own constitutions and retain plenary power to make laws covering anything not preempted by the federal Constitution or federal statutes. Nearly all states started with the same British common law base, but the passage of time has resulted in enormous diversity in the laws of the fifty states. Over time, state courts expanded the old common law rules in different directions (through their traditional power to make law under stare decisis), and state legislatures passed various statutes expanding or overriding such judge-made rules.

Unlike other common law jurisdictions, all American states have codified some or all of their statutory law into legal codes (an idea borrowed from the civil law). New York's codes are known as "Laws." California uses "Codes." Most other states use "Revised Statutes," "Compiled Statutes," or some other name for their codes. In some states, codification is often treated as a mere restatement of the common law, so that 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.

The advantage of codification is that once the state legislature becomes accustomed to writing new laws as amendments to an existing code, then the code will usually always reflect what the current law is.

In contrast, in jurisdictions with uncodified statutes, like the United Kingdom, it is much harder to determine what the current law is. One has to trace back to the earliest relevant Act of Parliament, and then identify all future Acts that purport to amend the earlier Act or which directly override it. For example, when the UK decided to create a Supreme Court of the United Kingdom, it had to identify every single Act referring to the House of Lords that was still good law, and then amend all of them to refer to the Supreme Court. [1]

Criminal law

In the arena of criminal law, states have somewhat similar laws in regards to to "higher crimes," such as murder and rape.

However, 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, the laws controlling drunk driving were rather unstandardized prior to the 1990s. Presently, only Mississippi allows persons to drive with open containers of alcohol in the vehicle; Mississippi also allows their drivers to drive and drink until they have reached the legal limit.

Tort law

American tort law tends to vary widely across the states. For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the lack of physical injury, but most do not. With practically any tort, there is a "majority rule" adhered to by most states, and one or more "minority rules." See United States tort law for more information.

Attempts at "uniform" laws

Efforts by various organizations at creating "uniform" state laws have been only partially successful. The two leading organizations are the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The most successful and influential uniform laws are the Uniform Commercial Code (a joint ALI-NCCUSL project) and the Model Penal Code (from ALI).

Apart from model codes, the American Law Institute has also created Restatements of the Law which are widely used by lawyers and judges as substitutes for long, tedious citations of old cases (in order to invoke the long-established principles contained in those cases).

Local law

States have delegated lawmaking powers to a staggering number of agencies, counties, cities, and special districts. And all the state constitutions, statutes and regulations are subject to judicial interpretation like their federal counterparts.

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.

Odd exceptions

Unlike the rest of the country, state law in Louisiana is based on the Napoleonic Code, inherited from its time as a French colony. Puerto Rico is also a civil law jurisdiction. However, the criminal law of both jurisdictions has been necessarily modified by common law influences and the supremacy of the federal Constitution.

California is a common law jurisdiction with a few features borrowed from the civil law. For example, it has a community property system for the property of married persons, and its statutes have long been codified into a complex system of named codes (Health and Safety Code, Vehicle Code, and so on).

See also

External links

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