Common law chapitre 3 - Comparative Law is the study of differences and similarities between the legal PDF

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CHAPTER 3 – THE LEGAL SYSTEM OF THE UNITED STATES OF AMERICA Section 1 – History of the American Legal System The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were specificilly outlawed by the Constitution, such as bills of attainder and general search warrants. 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. 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. 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. At both the federal and state levels, the law of the United States was mainly derived from the common law system of English law, which was in force at the time of the Revolutionary War. ! However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure. It has incorporated a number of civil law innovations.! As common law courts, U.S. courts have inherited the principle of stare decisis. ! American judges, like common law judges elsewhere, not only apply the law, they also make the law. Their decisions in the cases before them became the 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. ! Therefore, 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. An example is the heightened duty of care that was traditionally imposed upon common carriers.! Federal courts lack the plenary power possessed by state courts to simply make up law. ! State courts are able to do this in the absence of constitutional or statutory provisions replacing the common law. Only in a few 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).

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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, by vesting judicial power into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, vested in them the implied judicial power of common law courts to formulate persuasive precedent. ! 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.! State Law 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. ! Therefore, with regard to the vast majority of areas of the law that are traditionally managed by the states, the United States cannot be classified as having one legal system. ! Instead, it must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on. Naturally, the laws of different states frequently come into conflict with each other. In response, a very large body of law was developed to regulate the conflict of laws in the United States.! All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns state statutes, regulations, and local ordinances.! In some states, codification is often treated as a mere restatement of the common law. This occurs 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 primary sources of American Law are: constitutional law, statutory law, treaties, administrative regulations, and the common law.! Section 2 – Sources of the Law in the American Legal System §1 – The U.S. Constitution! Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world’s longest surviving written charter of government. ! Its first three words – “We The People” – affirm that the government of the United States exists to serve its citizens. ! Page 2 sur 13

The supremacy of the people through their elected representatives is recognized in Article I, which creates a Congress consisting of a Senate and a House of Representatives. The positioning of Congress at the beginning of the Constitution affirms its status as the “First Branch” of the federal government.! The Constitution assigned to Congress responsibility for organizing the executive and judicial branches, raising revenue, declaring war, and making all laws necessary for executing these powers.! The president is permitted to veto specific legislative acts, but Congress has the authority to override presidential vetoes by two-thirds majorities of both houses. The Constitution also provides that the Senate advise and consent on key executive and judicial appointments and on the approval for ratification of treaties.! For over two centuries the Constitution has remained in force because its framers successfully separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the federal and state governments. More a concise statement of national principles than a detailed plan of governmental operation, the Constitution has evolved to meet the changing needs of a modern society profoundly different from the eighteenth-century world in which its creators lived. To date, the Constitution has been amended 27 times, most recently in 1992. The first ten amendments constitute the Bill of Rights.! Why a Constitution? The need for the Constitution grew out of problems with the Articles of Confederation, which established a “firm league of friendship” between the States, and vested most power in a Congress of the Confederation. ! This power was, however, extremely limited—the central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the States. Crucially, it could not raise any funds itself, and was entirely dependent on the States themselves for the money necessary to operate. Each State sent a delegation of between two and seven members to the Congress, and they voted as a bloc with each State getting one vote. But any decision of consequence required a unanimous vote, which led to a government that was paralyzed and ineffectual. A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the State legislatures in 1787. ! In May of that year, delegates from 12 of the 13 States (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. ! The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.! Ratification The process set out in the Constitution for its ratification provided for much popular debate in the States. ! The Constitution would take effect once it had been ratified by nine of the thirteen State legislatures; unanimity was not required. During the debate over the Constitution, two factions emerged: the Federalists, who supported adoption, and the Anti-Federalists, who opposed it.! Page 3 sur 13

James Madison, Alexander Hamilton, and John Jay set out an eloquent defense of the new Constitution in what came to be called the Federalist Papers. Published anonymously in the newspapers The Independent Journal and The New York Packet under the name Publius between October 1787 and August 1788, the 85 articles that comprise the Federalist Papers remain to this day an invaluable resource for understanding some of the framers’ intentions for the Constitution. The most famous of the articles are No. 10, which warns of the dangers of factions and advocates a large republic, and No. 51, which explains the structure of the Constitution, its checks and balances, and how it protects the rights of the people. The States proceeded to begin ratification, with some debating more intensely than others. Delaware was the first State to ratify, on December 7, 1787. After New Hampshire became the ninth State to ratify, on June 22, 1788, the Confederation Congress established March 9, 1789 as the date to begin operating under the Constitution. By this time, all the States except North Carolina and Rhode Island had ratified—the Ocean State was the last to ratify on May 29, 1790. The Bill of Rights One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. ! Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several States, however, the ratification debate in some States hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four States ratified the Constitution but at the same time sent recommendations for amendments to the Congress.! James Madison introduced 12 amendments to the First Congress in 1789. ! Ten of these would go on to become what we now consider to be the Bill of Rights. ! One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. ! Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America.! The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. ! It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The Second Amendment gives citizens the right to bear arms.! The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution.! The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause.! Page 4 sur 13

The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.! The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be informed of the crimes with which one is charged, and to confront the witnesses brought forward by the government. The amendment also provides the accused the right to compel testimony from witnesses, as well as the right to legal representation.! The Seventh Amendment provides that civil cases preserve the right to trial by jury.! The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.! The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated.! The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the States, to either the States or to the people.! §2 – Federal and State Legislation ! When you have two governments (state and federal) governing the same people, there is an opportunity for conflict. ! Legal complications due to differences in state and federal law often arise and can leave many Washington residents confused and worried.! Sometimes, things are legal within a state, but illegal federally. ! Other times, the federal government says you have certain rights, while a state seems to limit or expand those rights. Who’s right? And which one do you listen to?$! The differences between federal and state law are confusing and many people have made critical errors when it comes to determining which laws to follow. As this is a legal issue, you can’t afford to be wrong.$! This article will help you understand the differences between federal and state law and which one wins out in a court system. ! When it comes to the law, never try to guess which ones to abide by. Take advantage of the information given in this article and contact our legal team to ensure that you acutely understand the relationship between federal and state legal systems.! Federal laws are bills that have passed both houses of Congress, been signed by the president, passed over the president's veto, or allowed to become law without the president's signature.! Regulations are rules made by executive departments and agencies, and are arranged by subject in the Code of Federal Regulations.! §3 – Case law! Case law is law that is based on judicial decisions rather than law based on constitutions, statutes, or regulations. ! Case law concerns unique disputes resolved by courts using the concrete facts of a case. By contrast, statutes and regulations are written abstractly.! Page 5 sur 13

Case law, also used interchangeably with common law, refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. In that sense, case law differs from one jurisdiction to another. ! For example, a case in New York would not be decided using case law from California. Instead, New York courts will analyze the issue relying on binding precedent." If no previous decisions on the issue exist, New York courts might look at precedents from a different jurisdiction, that would be persuasive authority rather than binding authority.! Other factors such as how old the decision is and the closeness to the facts will affect the authority of a specific case in common law.! Federalism also plays a major role in determining the authority of case law in a particular court. Indeed, each circuit has its own set of binding case law. ! As a result, a judgment rendered in the Ninth Circuit will not be binding in the Second Circuit but will have persuasive authority. ! However, decisions rendered by the Supreme Court of the United States are binding on all federal courts, and on state courts regarding issues of the Constitution and federal law.! §4 – Secondary Sources of the Law! A good place to start most research projects is with a secondary source. A secondary source is not the law. It's a commentary on the law. A secondary source can be used for three different purposes: it might educate you about the law, it might direct you to the primary law, or it might serve as persuasive authority. ! Few sources do all three jobs well. The important classes of legal secondary sources include: treatises, periodical articles, legal encyclopedias, ALR Annotations, Restatements, and Looseleaf services Treatises ! In this context, legal treatises are single or multi-volume works dedicated to the examination of an area of law. ! Treatises tend to be very good at describing the law, they're good law finders, and many of the classic treatises are persuasive. ! Treatises tend to provide an in-depth discussion of a particular area of law and will provide the researcher with references to a few cases and statutes.! The Legal Information Buyer’s Guide and Reference Manual describes the important legal treatises in several areas of the law. To identify and locate a legal treatise, use a library catalog like MORRIS (searching by topic and handbook, or topic and nutshell) or the Georgetown Treatise Finder ! Legal periodicals Legal periodical articles are in-depth discussions of narrow areas of the law and legal issues. Articles in academic journals tend to revolve around very theoretical and cutting-edge legal issues. Articles in practitioner-oriented journals tend to be more practical.! Periodical articles can be very good law finders; they tend to have a great many footnotes with a lot of legal citations. Some articles by eminent scholars can be persuasive.! Page 6 sur 13

Occasionally, legal periodical articles can be useful for explaining the law, but often they are too theoretical for that.! The major American legal periodical indexes are the Index to Legal Periodicals and LegalTrac.! In addition to the two major North American periodical indexes described above, there are many indexes devoted to articles on particular topics.! When using an index database such as a legal periodical index or a library catalog, a good strategy is to identify a book or article that looks relevant, notice the subjects or descriptors assigned to the item by the indexer or cataloger and run a new search based on the subjects or descriptors found. In general, full-text sources are not very good tools to use for finding periodical articles on a particular topic.! However, there are several databases that include full-text legal periodical articles, Lexis and Westlaw contain the full text of articles from many law reviews from roughly the past decade.! To use a full-text tool to find periodical articles, a user has to construct an online search and the online search will return articles that contain the particular language that the user chose. ! An index, on the other hand, will get a user articles that an editor has decided are about the topic selected.! Legal encyclopedias Legal encyclopedias are immense sets of books that briefly describe all of the main legal issues for a particular jurisdiction. An encyclopedia can provide a basic introduction to an area of law and will provide the user with some case and statutory citations.! Legal encyclopedias will not delve deeply into an area, nor will they discuss the finer points of an area of law. Legal encyclopedias are available online and in print.! The two national encyclopedias are American jurisprudence and corpus lurid secundum. ! ALR ! ALR provides topical annotations that focus on relatively narrow areas of the law, but discuss it in some depth. They provide a good basic grounding in law, as well as serve as good case finding tools.! Annotations can be identified in print by using the ALR Index to Annotations and online via online searches. ! Please note that the ALR titles tend to be very descriptive. So it can be useful to limit your search to the title field. In addition, the second section of an ALR annotation generally covers related annotations. This is the often worth examining.! Restatements ! The restatements were develop...