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Every business day, courts throughout the United States render decisions that together affect many thousands of people. Some affect only the parties to a particular legal action, but others ad- judicate rights, benefits, and legal principles that have an impact on vir- tually all Americans. Inevitably, many Americans may welcome a given rul- ing while others — sometimes many others—disapprove.All,however,ac- cept the legitimacy of these decisions, and of the courts’ role as final inter- preter of the law. There can be no more potent demonstration of the trust that Americans place in the rule of law and their confidence in the U.S. legal system.
The pages that follow survey that system. Much of the discussion ex- plains how U.S. courts are organized and how they work. Courts are central to the legal system, but they are not the entire system. Every day across America, federal, state, and local courts interpret laws, adjudicate dis- putes under laws, and at times even strike down laws as violating the fun- damental protections that the Consti- tution guarantees all Americans. At the same time, millions of Americans transact their day-to-day affairs with- out turning to the courts. They, too, rely upon the legal system. The young couple purchasing their first home, two businessmen entering into a con- tract, parents drawing up a will to pro- vide for their children — all require
the predictability and enforceable common norms that the rule of law provides and the U.S. legal system guarantees.
This introduction seeks to familiar- ize readers with the basic structure and vocabulary of American law. Subsequent chapters add detail, and afford a sense of how the U.S. legal system has evolved to meet the needs of a growing nation and its ever more complex economic and social realities.
A FEDERAL LEGAL SYSTEM: Overview
The American legal system has several layers, more possibly than in most other nations. One reason is the division between federal and state law. To understand this, it helps to recall that the United States was founded not as one nation, but as a union of 13 colonies, each claiming independence from the British Crown. The Declaration of Independence (1776) thus spoke of “the good People of these Colonies” but also pronounced that “these United Colonies are, and of Right ought to be, FREE AND INDEPEN- DENT STATES.” The tension between one people and several states is a perennial theme in American legal history. As explained below, the U.S. Constitution (adopted 1787, ratified 1788) began a gradual and at times hotly contested shift of power and legal authority away from the states and toward the federal government. Still, even today states retain substan- tial authority. Any student of the American legal system must under- stand how jurisdiction is apportioned between the federal government and the states.
The Constitution fixed many of the boundaries between federal and state law. It also divided federal power among legislative, executive, and judi- cial branches of government (thus creating a “separation of powers” between each branch and enshrining a system of “checks-and-balances” to prevent any one branch from overwhelming the others), each of which contributes distinctively to the legal system. Within that system, the Constitution delineated the kinds of laws that Congress might pass.
As if this were not sufficiently com- plex, U.S. law is more than the statutes passed by Congress. In some areas, Congress authorizes administrative agencies to adopt rules that add detail to statutory requirements. And the entire system rests upon the tradition- al legal principles found in English Common Law. Although both the Constitution and statutory law super- sede common law, courts continue to apply unwritten common law principles to fill in the gaps where the Constitution is silent and Congress has not legislated.
SOURCES OF FEDERAL LAW
The United States Constitution
Supremacy of Federal Law
During the period 1781–88, an agreement called the Articles of Confederation governed relations among the 13 states. It estab- lished a weak national Congress and left most authority with the states. The Articlesmadenoprovisionforafeder- al judiciary, save a maritime court, al- though each state was enjoined to honor (afford “full faith and credit” to) the rulings of the others’ courts.
The drafting and ratification of the Constitution reflected a growing consensus that the federal government needed to be strengthened. The legal system was one of the areas where this was done. Most significant was the “supremacy clause,” found in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This paragraph established the first principle of American law: Where the federal Constitution speaks, no state may contradict it. Left unclear was how this prohibition might apply to the federal government itself, and the role of the individual state legal sys- tems in areas not expressly addressed by the new Constitution. Amend- ments would supply part of the an- swer, history still more, but even today Americans continue to wrestle with the precise demarcations between the federal and state domains.
Each Branch Plays a Role in the Legal System
While the drafters of the Constitution sought to strengthen the federal gov- ernment, they feared strengthening it too much. One means of restraining the new regime was to divide it into
branches. As James Madison explained in Federalist No. 51, “usurpations are guarded against by a division of the government into distinct and separate departments.” Each of Madison’s “de- partments,” legislative, executive, and judiciary, received a measure of influence over the legal system.
Legislative
The Constitution vests in Congress the power to pass legislation. A proposal considered by Congress is called a bill. If a majority of each house of Con- gress — two-thirds should the Presi- dent veto it — votes to adopt a bill, it becomes law. Federal laws are known as statutes. The United States Code is a “codification” of federal statutory law. The Code is not itself a law, it merely presents the statutes in a logical arrangement. Title 20, for instance, contains the various statutes pertain- ing to Education, and Title 22 those covering Foreign Relations.
Congress’ lawmaking power is lim- ited. More precisely, it is delegated by the American people through the Constitution, which specifies areas where Congress may or may not legis- late. Article I, Section 9 of the Consti- tution forbids Congress from passing certain types of laws. Congress may not, for instance, pass an “ex post facto” law (a law that applies retroactively, or “after the fact”), or levy a tax on ex- ports. Article I, Section 8 lists areas where Congress may legislate. Some of these (“To establish Post Offices”) are quite specific but others, most notably, “To regulate Commerce with foreign Nations, and among the several States,” are less so. Obviously the power to in- terpret the less precise delegations is extremely important. Early in the young republic’s history, the judiciary branchassumedthisroleandthusse- cured an additional and extremely vital role in the U.S. legal system.
Judicial
As with the other branches, the U.S. judiciary possesses only those powers the Constitution delegates. The Con- stitution extended federal jurisdiction only to certain kinds of disputes. Arti- cle III, Section 2 lists them. Two of the most significant are cases involving a question of federal law (“all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...”) and “di- versity” cases, or disputes between cit- izens of two different states. Diversity jurisdiction allows each party to avoid litigating his case before the courts of his adversary’s state.
A second judicial power emerged in the Republic’s early years. As explained in Chapter 2, the U.S. Supreme Court in the case of Marbury v. Madison (1803) interpreted its delegated pow- ers to include the authority to deter- mine whether a statute violated the Constitution and, if it did, to declare such a law invalid. A law may be un- constitutional because it violates rights guaranteed to the people by the Constitution, or because Article I did not authorize Congress to pass that kind of legislation.
The power to interpret the consti- tutional provisions that describe where Congress may legislate is thus very important. Traditionally, Con- gress has justified many statutes as necessary to regulate “commerce... among the several States,” or interstate commerce. This is an elastic concept, difficult to describe with precision. In- deed, one might for nearly any statute devise a plausible tie between its ob- jectives and the regulation of interstate commerce. At times, the judicial branch interpreted the “commerce clause”narrowly.In1935,forinstance, the Supreme Court invalidated a federal law regulating the hours and wages of workers at a New York slaughterhouse because the chickens processed there all were sold to New Yorkbutchersandretailersandhence not part of interstate commerce. Soon after this, however, the Supreme Court began to afford President Franklin D. Roosevelt’s New Deal programs more latitude, and today the federal courts continue to interpret broadly the commerce power, although not so broadly as to justify any legislation that Congress might pass.
Executive
Article II entrusts to the President of the United States “the executive Power.” Under President George Washington (1789–1801), the entire
executive branch consisted of the President, Vice President, and the Departments of State, Treasury, War, and Justice. As the nation grew, the ex- ecutive branch grew with it. Today there are 15 Cabinet-level Depart- ments. Each houses a number of Bureaus, Agencies, and other entities. Still other parts of the executive branch lie outside these Departments. All exercise executive power delegated by the President and thus are respon- sible ultimately to him.
In some areas, the relationship be- tween the executive and the other two branches is clear. Suppose one or more individuals rob a bank. Congress has passed a statute criminalizing bank robbery (United States Code, Title 18, Section 2113*). The Federal Bureau of Investigation (FBI), a bureau within the Department of Justice, would investigate the crime. When it appre- hended one or more suspects,
a Federal Prosecutor (also Department of Justice) would attempt to prove the suspect’s guilt in a trial conducted by a U.S. District Court.
The bank robbery case is a simple one. But as the nation modernized and grew, the relationship of the three branches within the legal system evolved to accommodate the more complex issues of industrial and post- industrial society. The role of the ex- ecutive branch changed most of all. In the bank robbery example, Congress needed little or no special expertise to craft a statute that criminalized bank robbery. Suppose instead that law- makers wished to ban “dangerous” drugs from the marketplace, or re- strict the amount of “unhealthful” pollutants in the air. Congress could, if it chose, specify precise definitions of these terms. Sometimes it does so, but increasingly Congress instead dele- gates a portion of its authority to ad- ministrative agencies housed in the executive branch. The Food and Drug Administration (FDA) thus watches over the purity of the nation’s food and pharmaceuticals and the Environ- mental Protection Agency (EPA) reg- ulates how industries impact the earth, water, and air.
Although agencies possess only powers that Congress delegates by statute, these can be quite substantial. They can include the authority to promulgate rules that define with pre- cision more general statutory terms. A law might proscribe “dangerous” amounts of pollutants in the atmos- phere, while an EPA rule defines the substances and amounts of each that would be considered dangerous. Sometimes a statute empowers an agency to investigate violations of its rules, to adjudicate those violations, and even to assess penalties!
The courts will invalidate a statute that grants an agency too much power. An important statute called the Administrative Procedure Act (United States Code Title 5, Section 551, et. seq.) explains the procedures agencies must follow when promul- gating rules, judging violations, and imposing penalties. It also lays out how a party can seek judicial review ofanagency’sdecision.
Other Sources of Law
The most obvious sources of Ameri- can law are the statutes passed by Congress, as supplemented by admin- istrative regulations. Sometimes these demarcate clearly the boundaries of legal and illegal conduct — the bank robbery example again — but no government can promulgate enough law to cover every situation. Fortu- nately, another body of legal princi- ples and norms helps fill in the gaps, as explained below
Common Law
Where no statute or constitutional provision controls, both federal and state courts often look to the common law, a collection of judicial decisions, customs, and general principles that began centuries ago in England and continues to develop today. In many states, common law continues to hold an important role in contract dis- putes, as state legislatures have not seen fit to pass statutes covering every possible contractual contingency.
Judicial Precedent
Courts adjudicate alleged violations of and disputes arising under the law. This often requires that they interpret the law. In doing so, courts consider themselves bound by how other courts of equal or superior rank have previously interpreted a law. This is known as the principle of “stare decisis,” or simply precedent. It helps to ensure consistency and predictability. Litigants facing unfa- vorable precedent, or case law, try to distinguish the facts of their partic- ular case from those that produced the earlier decisions.
Sometimes courts interpret the law differently. The Fifth Amendment to the Constitution, for instance, containsaclausethat“[n]operson... shall be compelled in any criminal case to be a witness against himself.” From time to time, cases arose where an individual would decline to answer a subpoena or otherwise testify on the grounds that his testimony might subject him to criminal prosecution — not in the United States but in another country. Would the self- incrimination clause apply here? The U.S. Court of Appeals for the Second Circuit ruled it did, but the Fourth and Eleventh Circuits held that it did not.* This effectively meant that the law differed depending where in the country a case arose!
Higher-level courts try to resolve these inconsistencies. The Supreme Court of the United States, for in- stance, often chooses to hear a case when its decision can resolve a divi- sion among the Circuit courts. The Supreme Court precedent will con- trol, or apply to all the lower federal courts. In United States v. Balsys, 524 U.S. 666 (1998), the Supreme Court ruled that fear of foreign prosecution is beyond the scope of the Self- Incrimination Clause.**
This ruling became the law of the entire nation, including the Second Circuit. Any federal court subsequent- ly facing the issue was bound by the high court ruling in Balsys. Circuit court decisions similarly bind all the District Courts within that circuit. Stare decisis also applies in the various state court systems. In this way, prece- dent grows both in volume and explanatory reach.