Law of the United States
Overview
The law of the United States consists of many levels of codified and uncodified forms of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, of which the most important is the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, the foundation of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

 of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

. The Constitution sets out the boundaries of federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...

, which consists of constitutional acts of Congress, constitutional treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

 ratified by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, constitutional regulations promulgated by the executive branch, and case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

 originating from the federal judiciary
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...

.

The Constitution and federal law are the supreme law of the land
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...

, thus preempting conflicting state and territorial laws in the fifty U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s and in the territories.
Encyclopedia
The law of the United States consists of many levels of codified and uncodified forms of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, of which the most important is the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, the foundation of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

 of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

. The Constitution sets out the boundaries of federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...

, which consists of constitutional acts of Congress, constitutional treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

 ratified by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, constitutional regulations promulgated by the executive branch, and case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

 originating from the federal judiciary
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...

.

The Constitution and federal law are the supreme law of the land
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...

, thus preempting conflicting state and territorial laws in the fifty U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s and in the territories. However, the scope of federal preemption is limited, because the scope of federal power is itself rather limited. In the unique dual-sovereign system of American federalism (actually tripartite when one includes Indian reservation
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...

s), states are the plenary
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...

 sovereign
Sovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...

s, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution. Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights. Thus, most U.S. law (especially the actual "living law" of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

, tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

, criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, and family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...

 experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.

At both the federal and state levels, the law of the United States was originally largely derived from the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 system of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

, which was in force at the time of the Revolutionary War
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...

. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 innovations.

Sources of law

In the United States, the law is derived from four sources. These four sources are constitutional law
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...

, statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...

, administrative regulations, and the common law (which includes case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

). The most important source of law is the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. All other law falls under and are subordinate to that document. No law may contradict the Constitution.

Constitutionality

Where Congress enacts a statute that conflicts with the Constitution, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 may find that law unconstitutional and declare it invalid.

Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.

American common law

The United States and most Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...

 countries are heirs to the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 legal tradition of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

. Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...

 and general search warrants.

As common law courts, U.S. courts have inherited the principle of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

. American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague. Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carrier
Common carrier
A common carrier in common-law countries is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport...

s.

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....

 (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.

However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. The reason is that 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.

Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap. But citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people. The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910. By 1879, one of the delegates to the California constitutional convention
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...

 was already complaining: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already."

Today, in the words of Stanford law professor Lawrence Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

; but current British law almost never gets any mention." Foreign law has never been cited as binding precedent, but merely as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.

Federal law

Federal law originates with the Constitution, which gives Congress the power to enact statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

s for certain limited purposes like regulating interstate commerce. Nearly all statutes have been codified in the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...

. Many statutes give executive branch agencies the power to create regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...

s, which are published in the Federal Register
Federal Register
The Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...

 and codified into the Code of Federal Regulations
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...

. Regulations generally also carry the force of law under the Chevron doctrine
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers...

. 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
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

.

In the beginning, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the military, money
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....

, foreign affairs
Foreign Affairs
Foreign Affairs is an American magazine and website on international relations and U.S. foreign policy published since 1922 by the Council on Foreign Relations six times annually...

 (especially international treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

), tariff
Tariff
A tariff may be either tax on imports or exports , or a list or schedule of prices for such things as rail service, bus routes, and electrical usage ....

s, intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

 (specifically patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

s and copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

s), and mail
United States Postal Service
The United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...

. Since the start of the 20th century, aggressive interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation
Aviation
Aviation is the design, development, production, operation, and use of aircraft, especially heavier-than-air aircraft. Aviation is derived from avis, the Latin word for bird.-History:...

, telecommunications, railroads, pharmaceuticals, antitrust, and trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...

s. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and employment law, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...

, Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them (see, e.g., the McCarran-Ferguson Act
McCarran-Ferguson Act
The McCarran–Ferguson Act, 15 U.S.C. §§ 1011-1015, is a United States federal law that exempts the business of insurance from most federal regulation, including federal anti-trust laws to a limited extent. The McCarran–Ferguson Act was passed by Congress in 1945 after the Supreme Court ruled in...

).

Under the doctrine of Erie Railroad Co. v. Tompkins
Erie Railroad Co. v. Tompkins
Erie Railroad Co. v. Tompkins, 304 U.S. 64 , was a decision by the Supreme Court of the United States in which the Court held that federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction...

(1938), 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
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...

 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, 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
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

).

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. When hearing claims under state law pursuant to diversity jurisdiction
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...

, federal trial courts must apply the statutory and decisional law of the state in which they sit, as if they were a court of that state, even if they believe that the relevant state law is irrational or just bad public policy. And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.

If this was not confusing enough, state courts are not bound to follow judicial interpretations of federal law from the federal courts that sit in a state, including federal courts of appeals and district courts (that is, the intermediate appellate courts and trial courts). There is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.

Federal statutory enactment procedure

After the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

 signs a bill into law (or Congress enacts it over his veto), it is delivered to the Office of the Federal Register
Office of the Federal Register
The Office of the Federal Register is an agency of the United States government within the National Archives and Records Administration.The Office publishes the Federal Register, Code of Federal Regulations, and United States Statutes at Large, among others. It also administers the Electoral College....

 (OFR) of the National Archives and Records Administration
National Archives and Records Administration
The National Archives and Records Administration is an independent agency of the United States government charged with preserving and documenting government and historical records and with increasing public access to those documents, which comprise the National Archives...

 (NARA) where it is assigned a law number, and prepared for publication as a slip law
Slip law
In the United States, a slip law is an individual Act of Congress, which are either public laws or private laws . They are part of a three-part model for publication of Federal statutes consisting of slip laws, session laws, and codification...

. Public laws, but not private laws, are also given legal statutory citation by the OFR. At the end of each session of Congress, the slip laws are compiled into bound volumes called the Statutes at Large
Statutes at Large
Statutes at Large is the name given to published collections or series of legislative Acts in a number of jurisdictions:-England and Great Britain:* The Statutes at Large:...

, and they are known as session laws. The Statutes at Large present a chronological arrangement of the laws in the exact order that they have been enacted.

Every six years, public laws are incorporated into the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...

, which is a codification of all general and permanent laws of the United States. A supplement to the United States Code is published during each interim year until the next comprehensive volume is published. The U.S. Code is arranged by subject matter, and it shows the present status of laws with amendments already incorporated in the text that have been amended on one or more occasions.

Federal regulatory promulgation procedure

Congress often enacts statutes that grant broad rulemaking
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...

 authority to federal agencies. Often, Congress is simply too gridlocked
Gridlock (politics)
In politics, gridlock refers to the difficulty of passing laws fulfilling a party's political agenda in a legislature that is nearly evenly divided, or in which two legislative houses, or the executive branch and the legislature are controlled by different political parties...

 to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency's technical specialists are best equipped to deal with particular fact situations as they arise.

Therefore, pursuant to the Administrative Procedure Act, federal agencies are authorized to promulgate regulations by publishing them in the Federal Register. Eventually, after a period for public comment and revisions based on comments received, a final version is published in the Federal Register and the regulations are incorporated into the Code of Federal Regulations. Under the principle of Chevron
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers...

deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.

Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted, but are not entitled to Chevron deference.

Formulation of federal precedent

Unlike 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. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts. However, it is universally accepted that the Founding Fathers of the United States
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...

, by vesting "judicial power" into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...

, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent
Persuasive precedent
Persuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case...

; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified. Several legal scholars have argued that the federal judicial power to decide "cases or controversies" necessarily includes the power to decide the precedential effect of those cases and controversies.

The difficult question is whether federal judicial power extends to formulating binding precedent
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...

 through strict adherence to the rule of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

. 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 2007, 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 Judge Alex Kozinski
Alex Kozinski
Alex Kozinski is Chief Judge of the United States Court of Appeals for the Ninth Circuit, an essayist, and a judicial commentator.-Biography:...

 has explained, binding precedent as we know it today simply did not exist at the time the Constitution was framed. Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 19th century. Furthermore, English judges in the eighteenth century subscribed to now-obsolete natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

 theories of law, by which law was believed to have an existence independent of what individual judges said. They saw themselves as merely declaring the law which had always theoretically existed, not making it. Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, like how scientists regularly reject each other's conclusions as incorrect statements of the laws of science.

The contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the Judiciary Acts), and the beginning of regular verbatim publication of U.S. appellate decisions by West Publishing
Thomson West
West publishes legal, business, and regulatory information in print, and on electronic services such as Westlaw. Since the late 19th century, West has been one of the most prominent publishers of legal materials in the United States...

. It gradually developed case-by-case as an extension of the judiciary's public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...

 of effective judicial administration (that is, in order to efficiently exercise the judicial power). It is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, that in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

.

Here is a typical exposition of that public policy in a 2008 majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....

 signed by Associate Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....

:
However, since precedents became binding, it is now sometimes possible, over time, for a line of them to drift away from the express language of any underlying statutory or constitutional texts, until such texts are severely overloaded with implied meanings not even hinted at on their face. This tendency towards so-called judicial lawmaking has been particularly obvious in federal substantive due process
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...

 decisions. Due to obvious tension with the reservation of legislative power to Congress in Article One of the United States Constitution
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

, it is often subject to harsh criticism as "antidemocratic" from originalists
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...

 such as Associate Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

, as in this 2000 dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

:

State law

The fifty American states are separate sovereigns
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

 with their own state constitutions, state government
State government
A state government is the government of a subnational entity in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or be subject to the direct control of the federal government...

s, and state courts (including state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....

s). They retain plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...

 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.S. Supreme Court by way of a petition for writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

.

Most cases are litigated in state courts and involve claims and defenses under state laws. Each year, only about 280,000 civil and criminal cases are heard in federal courts, as opposed to 27.5 million civil and criminal cases in state courts (these numbers exclude 858,000 federal bankruptcy cases, and in state courts, 4.5 million domestic, 1.7 million juvenile, and 55 million traffic cases).

The law of most of the states is based on the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 of England; the notable exception is Louisiana, whose civil law
Louisiana law
Law in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law...

 is largely based upon French
Law of France
In academic terms, French law can be divided into two main categories: private or judicial law and public law .Judicial law includes, in particular:*civil law ; and*criminal law ....

 and Spanish law
Law of Spain
The Law of Spain is the term used to describe the legislation which is in force in the Kingdom of Spain, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in international waters. It is also applicable to the Spanish armed...

. The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law; as a result, the laws of any given state invariably differ from the laws of its sister states.

All states have a legislative branch which enacts state statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

s, 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.

All states have codified some or all of their statutory law into legal code
Legal code
A legal code is a body of law written by a governmental body, such as a U.S. state, a Canadian Province or German Bundesland or a municipality...

s. Codification was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field. New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

's codes are known as "Laws." California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

 and Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...

 simply call them "Codes." Other states use terms such as "Revised Statutes" or "Compiled Statutes" for their compilations. 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, to the extent that the subject matter of the particular statute at issue was covered by some judge-made principle at 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, the code will usually reflect democratic sentiment as to what the current law is (though the entire state of the law must always be ascertained by reviewing case law to determine how judges have interpreted a particular codified statute).

In contrast, in jurisdictions with uncodified statutes, like the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, determining what the law is can be a more difficult process. One has to trace back to the earliest relevant Act of Parliament, and then identify all later Acts which amended the earlier Act, or which directly overrode it. For example, when the UK decided to create a Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

, lawmakers had to identify every single Act referring to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

 that was still good law, and then amend all of those laws to refer to the Supreme Court.

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
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...

 (ALI) and the National Conference of Commissioners on Uniform State Laws
National Conference of Commissioners on Uniform State Laws
The National Conference of Commissioners on Uniform State Laws is a non-profit, unincorporated association commonly referred to as the U.S. Uniform Law Commission. It consists of commissioners appointed by each state, the District of Columbia, the Commonwealth of Puerto Rico and the United States...

 (NCCUSL). The most successful and influential uniform laws are the Uniform Commercial Code
Uniform Commercial Code
The Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...

 (a joint ALI-NCCUSL project) and the Model Penal Code
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...

 (from ALI).

Apart from model codes, the American Law Institute
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...

 has also created Restatements of the Law
Restatement of the Law
In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law...

 which are widely used by lawyers and judges to simplify the task of summarizing the current status of the common law. Instead of listing long, tedious citations of old cases that may not fit very well together (in order to invoke the long-established principles supposedly contained in those cases), or citing a treatise which may reflect the view of only one or two authors, they can simply cite a Restatement section (which is supposed to reflect the consensus of the American legal community) to refer to a particular common law principle.

Local law

States have delegated lawmaking powers to thousands of agencies
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...

, township
Township
The word township is used to refer to different kinds of settlements in different countries. Township is generally associated with an urban area. However there are many exceptions to this rule. In Australia, the United States, and Canada, they may be settlements too small to be considered urban...

s, counties, cities
City
A city is a relatively large and permanent settlement. Although there is no agreement on how a city is distinguished from a town within general English language meanings, many cities have a particular administrative, legal, or historical status based on local law.For example, in the U.S...

, 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.S. metropolitan areas
United States metropolitan area
In the United States a metropolitan statistical area is a geographical region with a relatively high population density at its core and close economic ties throughout the area. Such regions are not legally incorporated as a city or town would be, nor are they legal administrative divisions like...

 to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments). 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.

Procedural law

Traditionally, lawyers distinguish between procedural law (which controls the procedure followed by courts and parties to legal cases) and substantive law (which is what most people think of as law). In turn, procedural law is divided into criminal procedure and civil procedure.

Criminal procedure

The law of criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...

 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.S. to enact statutes that would actually force law enforcement officers to respect the constitutional rights of criminal suspects and convicts, the federal judiciary gradually developed the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...

 as a method to enforce such rights. In turn, the exclusionary rule spawned a family of judge-made remedies for the abuse of law enforcement powers, of which the most famous is the Miranda warning
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...

. The writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

is often used by suspects and convicts to challenge their detention, while the Civil Rights Act of 1871
Civil Rights Act of 1871
The Civil Rights Act of 1871, , enacted April 20, 1871, is a federal law in force in the United States. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux...

 and Bivens actions are used by suspects to recover tort damages for police brutality.

Civil procedure

The law of civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...

 governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law pleading
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...

 was replaced by code pleading in 24 states after New York enacted the Field Code in 1850, 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and equity courts was abolished in the federal courts by the adoption of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...

 in 1938; it has also been independently abolished by legislative acts in nearly all states. The Delaware Court of Chancery
Delaware Court of Chancery
The Delaware Court of Chancery is a court of equity in the American state of Delaware. It is one of Delaware's three constitutional courts, along with the Supreme Court and Superior Court.-Jurisdiction:...

 is the most prominent of the small number of remaining equity courts.

35 states have adopted rules of civil procedure closely 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.

New York, Illinois, and California are the most significant states that have not adopted the FRCP. Furthermore, both states continue to maintain 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. 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
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...

, heavy reliance on live testimony obtained at deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...

 or elicited in front of a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....

) or a settlement. U.S. courts pioneered the concept of the opt-out class action
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...

, by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. 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.

Substantive law

Substantive law comprises the actual "substance" of the law; that is, the law that defines legally enforceable rights and duties, and what wrongful acts amount to violations of those rights and duties. Because substantive law by definition is enormous, the following summary briefly covers only a few highlights of each of the major components of American substantive law.

Criminal law

Criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 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, crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

s can result in incarceration
Incarceration
Incarceration is the detention of a person in prison, typically as punishment for a crime .People are most commonly incarcerated upon suspicion or conviction of committing a crime, and different jurisdictions have differing laws governing the function of incarceration within a larger system of...

, 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
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

 and rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...

, although penalties for these crimes may vary from state to state. Capital punishment
Capital punishment in the United States
Capital punishment in the United States, in practice, applies only for aggravated murder and more rarely for felony murder. Capital punishment was a penalty at common law, for many felonies, and was enforced in all of the American colonies prior to the Declaration of Independence...

 is permitted in some states but not others. Three strikes law
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...

s in certain states impose harsh penalties on repeat offenders.

Some states distinguish between two levels: felonies and misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...

s (minor crimes). Generally, most felony convictions result in lengthy prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...

 sentences as well as subsequent probation
Probation
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...

, large fines, and orders to pay restitution
Restitution
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court...

 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. For example, punishments for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes
Recreational drug use
Recreational drug use is the use of a drug, usually psychoactive, with the intention of creating or enhancing recreational experience. Such use is controversial, however, often being considered to be also drug abuse, and it is often illegal...

 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
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

.

Contract law

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
Uniform Commercial Code
The Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...

. 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
Restatement (Second) of Contracts
The Restatement of the Law of Contracts is one of the most well-recognized and frequently-cited legal treatises in all of American jurisprudence. Every first year law student in every law school in the United States is exposed to it, and it is probably the most-cited non-binding authority in all...

.

Parties are permitted to agree to arbitrate
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...

 disputes arising from their contracts. Under the Federal Arbitration Act
Federal Arbitration Act
In United States law, the Federal Arbitration Act is a statute that provides for judicial facilitation of private dispute resolution through arbitration. It applies in both state courts and federal courts, as was held in Southland Corp. v. Keating...

 (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
Unconscionability
Unconscionability is a term used in contract law to describe a defense against the enforcement of a contract based on the presence of terms that are excessively unfair to one party...

 or fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...

 or something else which undermines the entire contract.

Tort law

Tort law
United States tort law
This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes...

 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
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...

 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
Negligent infliction of emotional distress
The tort of negligent infliction of emotional distress is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing...

 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
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...

 for defective products
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...

, which originated with judicial glosses on the law of warranty
Warranty
In business and legal transactions, a warranty is an assurance by one party to the other party that specific facts or conditions are true or will happen; the other party is permitted to rely on that assurance and seek some type of remedy if it is not true or followed.In real estate transactions, a...

. In 1963, Roger J. Traynor
Roger J. Traynor
Roger John Traynor served as the 23rd Chief Justice of California from 1964 to 1970, and as an Associate Justice from 1940 to 1964...

 of the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...

 threw away legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...

s based on warranties and imposed strict liability for defective products as a matter of public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...

 in the landmark case of Greenman v. Yuba Power Products. The American Law Institute subsequently adopted a slightly different version of the Greenman rule in Section 402A of the Restatement (Second) of Torts, which was published in 1964 and was very influential throughout the United States. Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985, by Australia in July 1992, and by Japan in June 1994.

By the 1990s, the avalanche of American cases resulting from Greenman and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the Restatement (Third) of Torts: Products Liability.

Odd exceptions

Much of Louisiana law
Louisiana law
Law in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law...

 is derived from French and Spanish civil law, which stems from its history as a colony of both France and Spain. Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...

, a former Spanish colony, is also a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 jurisdiction of the United States. However, the criminal law of both jurisdictions has been necessarily modified by common law influences and the supremacy of the federal Constitution.

Furthermore, Puerto Rico is also unique in that it is the only U.S. jurisdiction in which the everyday working language of court proceedings, statutes, regulations, and case law is Spanish
Spanish in the United States
Spanish is the second most used language in the United States. There are more Spanish speakers in the United States than there are speakers of Chinese, French, Italian, Hawaiian, and the Native American languages combined. According to the 2009 American Community Survey conducted by the U.S...

. All states, the federal government, and most territories use American English
American English
American English is a set of dialects of the English language used mostly in the United States. Approximately two-thirds of the world's native speakers of English live in the United States....

 as their working language. Some states, such as California, do provide certain court forms in several languages for the convenience of immigrants and naturalized citizens. But American law as developed through statutes, regulations, and case law is always in English, attorneys are expected to take and pass the bar examination
Bar examination
A bar examination is an examination conducted at regular intervals to determine whether a candidate is qualified to practice law in a given jurisdiction.-Brazil:...

 in English, judges hear oral argument and give orders from the bench in English, and testimony and documents originating in other languages is translated into English before being incorporated into the official record of a case.

Many states in the southwest that were originally Mexican territory have inherited several unique features from the civil law that governed when they were part of Mexico. These states include Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...

, California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

, Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...

, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...

, and Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...

. For example, these states all have a community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...

 system for the property of married
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...

 persons (Idaho
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....

, Washington, and Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...

 have also adopted community property systems, but they did not inherit them from a previous civil law system that governed the state). Another example of civil law influence in these states can be seen in the California Civil Code
California Civil Code
The Civil Code of California is a collection of statutes for the State of California. The code is made up of statutes which govern the general obligations and rights of persons within the jurisdiction of California...

, where the law of contracts is treated as part of the law of obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...

 (though the rules actually codified are clearly derived from the common law).

Many of the western states
Western United States
.The Western United States, commonly referred to as the American West or simply "the West," traditionally refers to the region comprising the westernmost states of the United States. Because the U.S. expanded westward after its founding, the meaning of the West has evolved over time...

, including California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...

, and Wyoming
Wyoming
Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...

 use a system of allocating water rights known as the prior appropriation doctrine
Prior appropriation water rights
Prior appropriation water rights, sometimes known as the Colorado Doctrine in reference to the U.S. Supreme Court case Wyoming v. Colorado, is a system of allocating water rights from a water source that is markedly different from riparian water rights...

, which is derived from Spanish civil law. It should be noted that each state has modified the doctrine to suit its own internal conditions and needs.

See also

  • Admission to the bar in the United States
    Admission to the bar in the United States
    In the United States, admission to the bar is the granting of permission by a particular court system to a lawyer to practice law in that system. Each U.S. state and similar jurisdiction has its own court system and sets its own rules for bar admission , which can lead to different admission...

  • Attorneys in the United States
  • Black's Law Dictionary
    Black's Law Dictionary
    Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...

  • Courts of the United States
    Courts of the United States
    Courts of the United States include both the United States federal courts, comprising the judicial branch of the federal government of the United States and state and territorial courts of the individual U.S...

  • Legal education in the United States
    Legal education in the United States
    Legal education in the United States generally refers to the education of lawyers before entry into practice. - The first law...

    • Law school in the United States
      Law school in the United States
      In the United States, a law school is an institution where students obtain a professional education in law after first obtaining an undergraduate degree.Law schools in the U.S...

  • Legal systems of the world
    Legal systems of the world
    The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...

  • Privacy laws of the United States

Lists


Further reading

  • Cardozo, Benjamin N. (1957). An Introduction to Law. Cambridge: Harvard Law Review Association. (Chapters by eight distinguished American judges).
  • Hart, H.L.A. (1961). The Concept of Law. Oxford University Press. (Classic text on "what is law?")
  • Llewellyn, Karl N. (1986). "The Bramble Bush," in Karl N. Llewellyn on Legal Realism. Birmingham, AL: Legal Classics Library. (Classic introductory text on the nature of law).
  • Nizer, Louis (1978). My Life in Court. New York: Jove. (Popular description of a lawyer's practice).
  • Pound, Roscoe (1997). Social Control Through Law. New Brunswick, NJ: Transaction Publishers. (Nature of law and its role in society).
  • Schwartz, Bernard (1974). The Law in America. New York: American Heritage Publishing Co. (Evolution of American legal institutions since 1790).

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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