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Unlike the situation with the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors.

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Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts. The difficult question is whether federal judicial power extends to formulating binding precedent through strict adherence to the rule of stare decisis. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases and therefore also impliedly binds all persons within the court's jurisdiction. Prior to a major change to federal court rules in , about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case.

As federal judge Alex Kozinski has pointed out, binding precedent as we know it today simply did not exist at the time the Constitution was framed. Judges saw themselves as merely declaring the law which had always theoretically existed, and not as making the law. In turn, according to Kozinski's analysis, the contemporary rule of binding precedent became possible in the U. Here is a typical exposition of that public policy in a majority opinion signed by Associate Justice Stephen Breyer :. Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right.

And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability.

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We have not found here any factors that might overcome these considerations. It is now sometimes possible, over time, for a line of precedents to drift from the express language of any underlying statutory or constitutional texts until the courts' decisions establish doctrines that were not considered by the texts' drafters. This trend has been strongly evident in federal substantive due process [46] and Commerce Clause decisions.

Under the doctrine of Erie Railroad Co. Tompkins , there is no general federal common law. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation which in turn was enacted as part of the Constitution or after. Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law.

Only in a few narrow limited areas, like maritime law, [52] has the Constitution expressly authorized the continuation of English common law at the federal level meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of stare decisis.

The other major implication of the Erie doctrine is that federal courts cannot dictate the content of state law when there is no federal issue and thus no federal supremacy issue in a case. Although judicial interpretations of federal law from the federal district and intermediate appellate courts hold great persuasive weight, state courts are not bound to follow those interpretations.

Supreme Court itself.


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The fifty American states are separate sovereigns , [59] with their own state constitutions , state governments , and state courts. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances.

The Contest for Constitutional Liberty

They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.

Supreme Court by way of a petition for writ of certiorari. Most cases are litigated in state courts and involve claims and defenses under state laws. States have delegated lawmaking powers to thousands of agencies , townships , counties , cities , and special districts. And all the state constitutions, statutes and regulations as well as all the ordinances and regulations promulgated by local entities are subject to judicial interpretation like their federal counterparts.

It is common for residents of major U. American lawyers draw a fundamental distinction between procedural law which controls the procedure followed by courts and parties to legal cases and substantive law the actual substance, or principles of law, which is what most people think of as law. Criminal law involves the prosecution by the state of wrongful acts which are considered to be so serious that they are a breach of the sovereign's peace and cannot be deterred or remedied by mere lawsuits between private parties. Generally, crimes can result in incarceration , but torts see below cannot.

The majority of the crimes committed in the United States are prosecuted and punished at the state level.

Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud. All states have somewhat similar laws in regard to "higher crimes" or felonies , such as murder and rape , although penalties for these crimes may vary from state to state.

Capital punishment is permitted in some states but not others. Three strikes laws in certain states impose harsh penalties on repeat offenders. Some states distinguish between two levels: felonies and misdemeanors minor crimes. Generally, most felony convictions result in lengthy prison sentences as well as subsequent probation , large fines , and orders to pay restitution directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine.

To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, infractions. These may result in fines and sometimes the loss of one's driver's license, but no jail time. For public welfare offenses where the state is punishing merely risky as opposed to injurious behavior, there is significant diversity across the various states.

source url For example, punishments for drunk driving varied greatly prior to State laws dealing with drug crimes still 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. The law of criminal procedure in the United States consists of a massive overlay of federal constitutional case law interwoven with the federal and state statutes that actually provide the foundation for the creation and operation of law enforcement agencies and prison systems as well as the proceedings in criminal trials.

Due to the perennial inability of legislatures in the U. The writ of habeas corpus is often used by suspects and convicts to challenge their detention, while the Civil Rights Act of and Bivens actions are used by suspects to recover tort damages for police brutality. The law of civil procedure governs process in all judicial proceedings involving lawsuits between private parties.

Traditional common law pleading was replaced by code pleading in 24 states after New York enacted the Field Code in and code pleading in turn was subsequently replaced again in most states by modern notice pleading during the 20th century. The old English division between common law and equity courts was abolished in the federal courts by the adoption of the Federal Rules of Civil Procedure in ; it has also been independently abolished by legislative acts in nearly all states.

The Delaware Court of Chancery is the most prominent of the small number of remaining equity courts. Thirty-five states have adopted rules of civil procedure modeled after the FRCP including rule numbers. However, in doing so, they had to make some modifications to account for the fact that state courts have broad general jurisdiction while federal courts have relatively limited jurisdiction. Furthermore, all three states continue to maintain most of their civil procedure laws in the form of codified statutes enacted by the state legislature, as opposed to court rules promulgated by the state supreme court, on the ground that the latter are undemocratic.

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But certain key portions of their civil procedure laws have been modified by their legislatures to bring them closer to federal civil procedure. Generally, American civil procedure has several notable features, including extensive pretrial discovery , heavy reliance on live testimony obtained at deposition or elicited in front of a jury , and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition that is, summary judgment or a settlement.

Another unique feature is the so-called American Rule under which parties generally bear their own attorneys' fees as opposed to the English Rule of "loser pays" , though American legislators and courts have carved out numerous exceptions. Contract law covers obligations established by agreement express or implied between private parties. Generally, contract law in transactions involving the sale of goods has become highly standardized nationwide as a result of the widespread adoption of the Uniform Commercial Code. However, there is still significant diversity in the interpretation of other kinds of contracts, depending upon the extent to which a given state has codified its common law of contracts or adopted portions of the Restatement Second of Contracts.

Parties are permitted to agree to arbitrate disputes arising from their contracts. Under the Federal Arbitration Act which has been interpreted to cover all contracts arising under federal or state law , arbitration clauses are generally enforceable unless the party resisting arbitration can show unconscionability or fraud or something else which undermines the entire contract. Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract.

Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and of course, partially overlaps with wrongs also punishable by criminal law. Although the American Law Institute has attempted to standardize tort law through the development of several versions of the Restatement of Torts, many states have chosen to adopt only certain sections of the Restatements and to reject others. Thus, because of its immense size and diversity, American tort law cannot be easily summarized. For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence of physical injury to the plaintiff, but most do not.

For any particular tort, states differ on the causes of action, types and scope of remedies, statutes of limitations, and the amount of specificity with which one must plead the cause. With practically any aspect of tort law, there is a "majority rule" adhered to by most states, and one or more "minority rules. Notably, the most broadly influential innovation of 20th-century American tort law was the rule of strict liability for defective products , which originated with judicial glosses on the law of warranty. In , Roger J. Traynor of the Supreme Court of California threw away legal fictions based on warranties and imposed strict liability for defective products as a matter of public policy in the landmark case of Greenman v.

Yuba Power Products. By the s, the avalanche of American cases resulting from Greenman and Section A had become so complicated that another restatement was needed, which occurred with the publication of the Restatement Third of Torts: Products Liability. From Wikipedia, the free encyclopedia. Overview of United States law.

Main article: United States Code. Main article: Code of Federal Regulations. Further information: Federal Register. Main article: State law United States. Main articles: United States criminal law and United States criminal procedure. Main article: United States civil procedure. Main article: United States contract law. Main article: United States tort law. Berkeley: Nolo, , Aaron , U. Paul, MN: Thomson West, , Ashcroft , U. Lopez , U. Robins , U.


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Ramos , U. Friedman, A History of American Law , 3rd ed. New York: Touchstone, , and — Alan B. Professor Friedman points out that English law itself was never completely uniform across England prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.