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WIKIBOOKS
DISPONIBILI
?????????

ART
- Great Painters
BUSINESS&LAW
- Accounting
- Fundamentals of Law
- Marketing
- Shorthand
CARS
- Concept Cars
GAMES&SPORT
- Videogames
- The World of Sports

COMPUTER TECHNOLOGY
- Blogs
- Free Software
- Google
- My Computer

- PHP Language and Applications
- Wikipedia
- Windows Vista

EDUCATION
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LITERATURE
- Masterpieces of English Literature
LINGUISTICS
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- English Dictionaries
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MEDICINE
- Medical Emergencies
- The Theory of Memory
MUSIC&DANCE
- The Beatles
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SCIENCE
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- Nanotechnology
LIFESTYLE
- Cosmetics
- Diets
- Vegetarianism and Veganism
TRADITIONS
- Christmas Traditions
NATURE
- Animals

- Fruits And Vegetables



ARTICLES IN THE BOOK

  1. Act of parliament
  2. Administrative law
  3. Adversarial system
  4. Affidavit
  5. Allegation
  6. Alternative dispute resolution
  7. Arbitration
  8. Arrest warrant
  9. Attorney
  10. Attorney General
  11. Bail
  12. Barrister
  13. Burdens of proof
  14. Capital punishment
  15. Civil code
  16. Civil law
  17. Common law
  18. Complaint
  19. Conciliation
  20. Constitutional law
  21. Consumer Protection
  22. Contract
  23. Conviction
  24. Corporate manslaughter
  25. Court
  26. Court of Appeal of England and Wales
  27. Crime
  28. Criminal jurisdiction
  29. Criminal law
  30. Criminal procedure
  31. Cross-examination
  32. Crown attorney
  33. Crown Court
  34. Defendant
  35. Dispute resolution
  36. English law
  37. Evidence
  38. Extradition
  39. Felony
  40. Grand jury
  41. Habeas corpus
  42. Hearsay in English Law
  43. High Court judge
  44. Indictable offence
  45. Indictment
  46. Inquisitorial system
  47. Intellectual property
  48. Judge
  49. Judgment
  50. Judicial economy
  51. Judicial remedy
  52. Jurisdictions
  53. Jurisprudence
  54. Jurist
  55. Jury
  56. Jury trial
  57. Justice
  58. Law
  59. Law of obligations
  60. Law of the United States
  61. Lawsuit
  62. Legal profession
  63. Magistrate
  64. Mediation
  65. Miscarriage of justice
  66. Napoleonic Code
  67. Negotiation
  68. Notary public
  69. Old Bailey
  70. Online Dispute Resolution
  71. Plaintiff
  72. Pleading
  73. Power of attorney
  74. Practice of law
  75. Probable cause
  76. Property law
  77. Prosecutor
  78. Public international law
  79. Public law
  80. Right to silence
  81. Roman law
  82. Scientific evidence
  83. Search warrant
  84. Seventh Amendment to the United States Constitution
  85. Solicitors
  86. Statute
  87. Statute of limitations
  88. Supreme Court of the United States
  89. Testimony
  90. Tort
  91. Torture
  92. Trial by ordeal
  93. Trusts
  94. Verdict

 

 
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FUNDAMENTALS OF LAW
This article is from:
http://en.wikipedia.org/wiki/Law_of_the_United_States

All text is available under the terms of the GNU Free Documentation License: http://en.wikipedia.org/wiki/Wikipedia:Text_of_the_GNU_Free_Documentation_License 

Law of the United States

From Wikipedia, the free encyclopedia

 
The United States Constitution, the supreme law of the land
The United States Constitution, the supreme law of the land
The United States Reports, the official reporter of the Supreme Court of the United States
The United States Reports, the official reporter of the Supreme Court of the United States

The law of the United States was originally largely derived from the common law of the system of English law, which was in force at the time of the Revolutionary War. However, the supreme law of the land is the United States Constitution and, under the Constitution's Supremacy Clause, laws enacted by Congress and 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.

General overview

Sources of law

In the United States, the law is derived from four sources. These four sources are constitutional law, administrative law, statutes, and the common law (which includes case law). The most important source of law is the United States Constitution. All other law falls under, and is subordinate to, that document. No law may contradict the United States Constitution. For example, if Congress passes a statute that conflicts with the constitution, the Supreme Court may find that law unconstitutional, and strike it down.

American common law

The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. However, the United States has developed a body of law that simultaneously bears a clear resemblance to British law but is also clearly distinct in many important ways. However, it is not uncommon for American courts to look to British cases for persuasive authority and as a point of comparison. Additionally, some older British statutes remain largely unchanged within the American Common law. Two examples that many lawyers will recognize are the Statute of Frauds and the Staute of 13 Elizabeth. Although both these originally British Statutes have modern American common law and statutory equivalents, they are regularly cited in their original form. See the talk page.

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 19th century as American courts developed their own principles to resolve the legal problems of the American people.[1] 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 William Blackstone or Lord Denning.

Some adherents of originalism and strict constructionism such as Justice Antonin Scalia of the United States Supreme Court 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 United States is a signatory. This position follows inevitably from the philosophy of originalism, which posits not only that the United States Constitution is the ultimate source of judicial authority in the U.S., but that the only proper analysis of the document consists of discerning the intent of its drafters. Therefore, discussion of British law that post-dated the Constitution is irrelevant as it sheds no light on the drafters' intent. Others, such as Justices Anthony Kennedy and Stephen Breyer, disagree, and cite foreign law from time to time, where they believe it is persuasive, useful or helpful.

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

Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of California
Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of California

The fifty 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, although Louisiana law has always been strongly influenced by the French Napoleonic Code, but the passage of time has resulted in enormous diversity in the laws of the 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, which was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field. New York's codes are known as "Laws." California and Texas simply call them "Codes." Most other states use "Revised Statutes," "Compiled Statutes," or some other name for their codes. California, New York, and Texas have separate subject-specific codes, while all other states and the federal government use a single code divided into numbered titles.

In some states, codification is often treated as a mere restatement of the 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.

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 democratic sentiment as to 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 later Acts which purported to amend the earlier Act or which directly overrode 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.[2]

However, American codes are not the direct equivalents of their civil law counterparts (see civil code), and should not be confused with them. American codes do not have complete internal logical coherence nor do they currently aspire to such a status. They have been labeled mere "collections of statutes" due to the failure of all levels of government to allocate adequate resources towards maintaining the internal coherence of the codes.[3] What were intended to be elegant restatements of the common law have become bloated with a variety of chaotic ad hoc additions that would be unthinkable in civil law jurisdictions.[4]

Even worse, some states were never able to reconcile the old common law lawmaking model with the concept of codification. For example, California codes are to be liberally construed as a continuation of the common law to the extent that they harmonize with the common law or pre-code statutes. This hopelessly confusing compromise has created a continuing state of chaos in the judge-made law of California statutory interpretation.[5]

Criminal law

In the arena of criminal law, all states have somewhat similar laws in regard to "higher crimes," such as murder and rape, although penalties for these crimes may vary from state to state. Additionally, state laws dealing with drug crimes 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.

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.

Tort law

United States tort law for personal injury tends to vary widely across the states. For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence 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."

Attempts at "uniform" laws

Efforts by various organizations to create "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

Law affects every aspect of American life, including parking lots.  Note the citations to statutes on the sign.
Law affects every aspect of American life, including parking lots. Note the citations to statutes on the sign.

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, as noted above, 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. Besides the codification noted above, it has a community property system for the property of married persons. Also, the California Civil Code shows civil law influences in that the law of contracts is treated as part of the law of obligations (though the rules actually codified are clearly derived from the common law).

See also

  • Legal systems of the world
  • Women in the U.S. Judiciary
  • Black's Law Dictionary

Acts and Codes

  • United States Code
  • Controlled Substances Act
  • Digital Millennium Copyright Act
  • Sonny Bono Copyright Term Extension Act
  • Sudan Peace Act
  • False Claims Act

Lists

  • List of sources of law in the United States
  • List of United States Supreme Court cases
  • List of Uniform Acts (United States)
  • List of United States federal legislation

External links

  • Texts of US federal laws and US state laws
  • U.S. Code collection at Cornell University's Legal Information Institute

References

  1. ^ Elizabeth Gaspar Brown, "Frontier Justice: Wayne County 1796-1836," in Essays in Nineteenth-Century American Legal History, ed. Wythe Holt, 676-703 (Westport, CT: Greenwood Press, 1976): 686. Between 1808 and 1828, the briefs filed in court cases in the Territory of Michigan changed from a complete reliance on English sources of law to an increasing reliance on citations to American sources.
  2. ^ Constitutional Reform Act 2005, via Office of Public Sector Information (OPSI.Gov.uk)
  3. ^ Andrew P. Morriss, "Codification of the Law in the West," in Law of the Western United States, ed. Gordon Morris Bakken, 45-54 (Norman: University of Oklahoma Press, 2000), 53.
  4. ^ Morriss, 52.
  5. ^ Morriss, 48.
 
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