Sources of American Law CHAPTER 5 Sources of American Law

Introduction English colonists brought the law of England with them American law developed its own unique characteristics over time Absorbed ideas from the Spanish, French, and Mexican legal systems Laws of other countries and international laws affect decision making in American courts

The Framework of American Law What Is the Law? Depends on a person’s views on morality, ethics, and truth Defined as a body of rules of conduct established and enforced by the government Laws establish rights, duties, and privileges for the citizens they govern Law provides stability, predictability, and continuity

The Framework of American Law Primary Sources of American Law Case law and common law doctrines The U.S. Constitution and state constitutions Statutes Regulations created by administrative agencies Learning Objective: The meaning and relative importance in the American legal system of case law, constitutional law, statutory law, and administrative law.

The Framework of American Law Secondary sources of law Books and articles that summarize, synthesize, and explain the primary sources of law Legal encyclopedias, treatises, law review articles, compilations of law Learning Objective: The meaning and relative importance in the American legal system of case law, constitutional law, statutory law, and administrative law.

Case Law and the Common Law Tradition The Doctrine of Stare Decisis Cornerstone of the English and American judicial systems Means “to stand by things decided” Binding authority Persuasive precedents Departures from precedent These cases often receive great publicity Case of first impression These cases often involve new technology Learning Objective: How English law influenced the development of the American legal system.

Case Law and the Common Law Tradition Remedies at Law versus Remedies in Equity Courts of law awarded limited remedies Remedies at law included land, items of value, or money Courts of equity awarded a remedy in equity Now separate courts are combined in most states, so both types of remedies can be sought in a single lawsuit Learning Objective: The difference between remedies at law and equitable remedies.

Case Law and the Common Law Tradition Remedies at Law versus Remedies in Equity (continued) Equitable principles and maxims Whoever seeks equity must do equity Equity requires clean hands Equity will not suffer a right to exist without a remedy Equity values substance over form Equity aids the vigilant, not those who sleep on their rights

Case Law and the Common Law Tradition Remedies at Law versus Remedies in Equity (continued) Doctrine of laches Equitable remedies  Specific performance Injunction

Case Law and the Common Law Tradition The Common Law Today Common law is law announced in previous court decisions To clarify common law rules and principles Restatements of the Law Published by the American Law Institute (ALI) Summarize and explain common law rules These do not have the force of law Important secondary sources of legal analysis Learning Objective: What the common law tradition is and how it evolved.

Case Law and the Common Law Tradition The Terminology of Case Law Case titles Case citation The parties Plaintiff, defendant, co-defendants, appellant, appellee Judges and justices Learning Objective: Some of the terms that are commonly found in case law.

Case Law and the Common Law Tradition The Terminology of Case Law (continued) Decisions and opinions Procedural history of case, summary of relevant facts, court’s reasons for its decision, rules of law that apply, the judgment Unanimous, majority, plurality, concurring, dissenting Learning Objective: Some of the terms that are commonly found in case law.

Case Law and the Common Law Tradition The Adversarial System of Justice Parties act as adversaries or opponents The goal is to win Criticisms of the adversarial system Pressure to win cases Others affected by success or failure Contributes to a lack of integrity Attorneys may prolong disputes, obscure the truth for higher income Yet most Americans believe in the due process of law

Constitutional Law The Federal Constitution Nation’s highest law Article IV: the supremacy clause Constitutional rights Bill of Rights Application to state governments The courts and constitutional law Courts balance the right to free speech Free speech and the Internet

Constitutional Law State Constitutions Each state has a constitution General organization of state government Its powers Its limits Tenth Amendment to U.S. Constitution Reserves all powers not granted to the federal government to the states State constitutions are supreme within states’ borders unless they conflict with U.S. Constitution

Statutory Law Federal Statutes Laws enacted by U.S. Congress Protection of intellectual property rights Regulation of purchase and sale of corporate stock Prohibition of employment discrimination Protection of the environment Protection of consumers The federal government’s constitutional authority to enact laws The federal lawmaking process Public law number (P.L. number)

Statutory Law State Statutes Conflicts between federal and state laws Preemption The state lawmaking process Local ordinances

Statutory Law Uniform Laws National Conference of Commissioners on Uniform State Laws Group of legal scholars and lawyers Drafted uniform statutes for adoption by the states Continues to issue uniform statutes Adoption of uniform laws is a state matter

Statutory Law Interrelationship of Various Areas of Law Due process of the law Application to criminal law Application to employment law

Administrative Law Important Source of American Law Administrative Agency Established to perform a specific function Affects most aspects of a business’s operation Federal Level Many administrative agencies Variety of missions

Administrative Law Agency Creation Congress delegates implementation Enabling legislation for the agency Name Purpose Composition Powers

Administrative Law Rulemaking One of the major functions of an administrative agency Administrative Procedure Act of 1946 Agency must give public notice Agency must allow time for interested parties to comment Writing of the final rule, publication in Federal Register

Administrative Law Investigation and Enforcement Agencies have investigatory and prosecutorial powers Can request specific papers, files, or other documents May conduct on-site inspections May search a home, an office, or a factory Most actions resolved through negotiated settlements, without adjudication

Administrative Law Adjudication Trial-like hearing Administrative law judge (ALJ) Presides over hearing Administers oaths Takes testimony Rules on questions of evidence Makes determinations of fact

National and International Law Business is increasingly global Issues relating to foreign parties or governments Laws of other nations affect outcomes Paralegal working with clients in foreign countries may need to be familiar with international law

National and International Law Law of a particular nation Laws represent unique cultural, historical, economic, and political background of each nation English common law heritage England, United States, countries that were once colonies Learning Objective: How national law and international law differ and why these bodies of law sometimes guide judicial decision making in U.S. courts.

National and International Law National Law (continued) Civil law system Most European nations base law on Roman civil law Primary source of law is statutory code Not obligated to follow precedent Learning Objective: How national law and international law differ and why these bodies of law sometimes guide judicial decision making in U.S. courts.

National and International Law Body of written and unwritten laws Observed by independent nations Governs acts of individuals as well as governments Enforced for reasons of courtesy or expediency Treaties Bilateral Multilateral International organizations

Summary The law has been defined variously over time Law consists of a body of rules of conduct established and enforced by the controlling authority of a society There are four primary sources of American law Case law consists of the decisions issued by judges in cases that come before the court

Summary If no precedent exists, the court considers the matter as a case of first impression In medieval England, two types of courts emerged: courts of law and courts of equity The common law governs all areas of law not covered by statutory law Constitutional law is all law that is based on the provisions in the U.S. Constitution, and the various state constitutions

Summary Statutory law consists of all laws enacted by federal Congress, state legislature, or municipality Administrative law consists of the rules, regulations, and decisions of administrative agencies at all levels of government