American Law
is actually a body of many laws emanating from many sources. Sources of law include:
- Common Law,(Case Law)
- Statutory Law
- Administrative Law
- Court Rules
- Constitutional Law
- Common law, (case law)
- Law found in the decisions of the courts rather than in statutes; judge-made law
- Precedent
- Prior decision of the same court, or a higher court, which a judge must follow in deciding in a subsequent case presenting similar facts and the same legal problem, even though different parties are involved and many years have elapsed.
- Stare decisis
- Latin term for "standing by the decision." The doctrine that judicial decisions stand as precedents for cases arising in the future. It is a fundamental policy of our law that, except in unusual circumstances, a court's determination on a point of law will be followed by courts of the same or lower rank in later case presenting the same legal issue, even thought different parties are involved and many years have elapsed.
- Ordinance
- A law of a municipal corporation; a local law enacted by a city council, town council, board of supervisors, or the like. A rule established by authority
- Regulation
- A rule having the force of law, promulgated by an administrative agency.
- Rules of court
- (court rules) Rules promulgated by the court, governing procedure or practice before it.
Common, (case) Law, the origin of American Law
The oldest form of law in the United States is thecommon, case law. The common law was developed in England and brought to the United States by English colonists. The common law is judge-made law; in the United States, it is law that has been developed by the judges of both England and the United States. To comprehend how common law developed, you must understand the concepts ofprecedent and stare decisis.
The oldest form of law in the United States is thecommon, case law. The common law was developed in England and brought to the United States by English colonists. The common law is judge-made law; in the United States, it is law that has been developed by the judges of both England and the United States. To comprehend how common law developed, you must understand the concepts ofprecedent and stare decisis.
Whenever a court renders a legal decision, that decision becomes binding on the court and its inferior courts when the same issue arises again in the future. The decision of the court is known as a precedent. The principle that inferior court will comply when the issue is raised in the future is known as the doctrine of stare decisis from the Latin phrase stare decisis et non queta overa (meaning "stand by precedents and do not disturb settled points").
The rationale behind this policy is the need to promote certainty, stability, and predictability of the law.
The rationale behind this policy is the need to promote certainty, stability, and predictability of the law.
Common law is fluid, always changing with societal values and expectations. As one court stated, "The common law of the land is based upon the human experience in the increasing effort of enlightened people to ascertain what is right and just between men". For example, under ancient common law, ownership of land extended to the periphery of the universe. With the invention of the airplane, a change in this common law was needed. In MacPherson v. BuickMotor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), a new common law war recognized in a purchaser against a manufacturer for injuries caused by latent defects in an article purchased at retail. Thus common law changes due to technological and social developments.
Initially, the 13 original states al adopted the common law. Today, only Luisiana has not adopted the common law in some form; most states have expressly adopted the common law either by statute or by constitutional authority, although many adopted only parts of the common law. However, approximately half of the states no longer recognize common-law crimes. Even in theses states, though, the civil common law (i.e., defenses to criminal charges) continue in force.
Modifications to, and nullifications of, common law come about in many different manners. In some instances, courts have decided that the common law must be changed to meet contemporary conditions. In extreme situations, parts of the common law have been totally abolished. Because the legislatures are charged with the duty of making laws, they have the final word, unless there is a state constitutional provision stating otherwise, on the status of the common law. Some legislatures, however, have expressly given their judiciaries the authority to modify, partially abolish, or wholly abolish the common law as long as the state constitution and the United Stated Constitution are not violated by so doing.
The common law normally is inferior to legislation, so if a legislature acts in an area previously dealt with by common law, the new statute is controlling, absent a statement by the legislature to the contrary.
Statutory Law
The legislative branch is responsible for creation of law. Legislature possesses the authority to modify, abolish or adopt the common law, in whole or in part. During the 19th century, states began a major movement away from the common law and instead began codifying the law.
Although the power of the legislative branch is significant, there are limits. The constitutions of the United States and of the many states contain limits on such state and federal authority. Most of these limits are found in the Bill of Rights. For example, the First Amendment to the federal Constitution prohibits government from punishing an individual for exercising choice of religion. As you learned previously, if a legislature does not enact law that violates a constitutional provision, it is the duty of the judicial branch to declare the law void. This is the power of judicial review.
The legislative branch is responsible for creation of law. Legislature possesses the authority to modify, abolish or adopt the common law, in whole or in part. During the 19th century, states began a major movement away from the common law and instead began codifying the law.
Although the power of the legislative branch is significant, there are limits. The constitutions of the United States and of the many states contain limits on such state and federal authority. Most of these limits are found in the Bill of Rights. For example, the First Amendment to the federal Constitution prohibits government from punishing an individual for exercising choice of religion. As you learned previously, if a legislature does not enact law that violates a constitutional provision, it is the duty of the judicial branch to declare the law void. This is the power of judicial review.
The written laws of municipalities are ordinances. Ordinances are enacted by city councils and commonly regulate zoning, building, construction, and related matters. Many cities have criminal ordinances that mirror state statutes, only they apply to those acts that occur within the jurisdiction of the city. Ordinances may not conflict with state or federal law. Any ordinance that is inconsistent with higher law may be invalidated by a court. States limit the power of cities to punish for ordinance violations, and most city court trials are to the bench, not to a jury.
Administrative Law
Administrative agencies are governmental units- federal, state, and local - which administer the affairs of the government. Although often lumped together, they are actually two types of agencies, administrative and regulatory. The two names reflect the purposes behind each type. Administrativeagencies put into effect government programs.. For example, in Indiana, the State Department of Public Welfare administers the distribution of public money to those deemed needy. In contrast, state medical licensing boards are regulatory, because their duty is to oversee and regulate the practice of medicine in the various states. Both regulatory and administrative agencies receive their powers from the legislative branch.
Administrative agencies are governmental units- federal, state, and local - which administer the affairs of the government. Although often lumped together, they are actually two types of agencies, administrative and regulatory. The two names reflect the purposes behind each type. Administrativeagencies put into effect government programs.. For example, in Indiana, the State Department of Public Welfare administers the distribution of public money to those deemed needy. In contrast, state medical licensing boards are regulatory, because their duty is to oversee and regulate the practice of medicine in the various states. Both regulatory and administrative agencies receive their powers from the legislative branch.
Because legislatures do not possess the time or the expertise to write precise statutes, they often enact a very general statute which grants one or more administrative agencies the authority to make more precise laws. Just as legislative enactments are known as statutes (or codes), administrative laws are known as regulations.
Court Rules
Just as administrative agencies need the authority to fill in the gaps of legislation, because statutes are not specific enough to satisfy all of an agency's needs, so do courts. The United States Congress and all of the state legislatures have enacted some form of statute establishing general rules of civil and criminal procedure. However, to fill in the gaps left by legislatures, courts adopt court rules which also govern civil and criminal processes. Although court rules deal with the procedural issues (such as service of process, limits on the length of briefs and memoranda, and timing of filing) rather than substantive issues, they are nevertheless important. Of course, court rules may not conflict with legislative mandates. If a rule does conflict with a statute, the statute is controlling.
Just as administrative agencies need the authority to fill in the gaps of legislation, because statutes are not specific enough to satisfy all of an agency's needs, so do courts. The United States Congress and all of the state legislatures have enacted some form of statute establishing general rules of civil and criminal procedure. However, to fill in the gaps left by legislatures, courts adopt court rules which also govern civil and criminal processes. Although court rules deal with the procedural issues (such as service of process, limits on the length of briefs and memoranda, and timing of filing) rather than substantive issues, they are nevertheless important. Of course, court rules may not conflict with legislative mandates. If a rule does conflict with a statute, the statute is controlling.
Most court rules are drafted under the direction of the highest court of the state and become effective either by vote of the court or after being presented to the state legislature for ratification. In the federal system, the rules are drafted by the Judicial Conference, under the direction of the Supreme Court, and then presented to Congress. If Congress fails to act to nullify the rules, they become law.
Constitutional Law
Constitutional law, particularly the United States Constitution and the Bill of Rights, has a major impact on our legal system and our society as a whole. The United States Constitution is the foundation of American law, and no laws may be passed or enforced if they are in conflict with the Constitution.
Constitutional law, particularly the United States Constitution and the Bill of Rights, has a major impact on our legal system and our society as a whole. The United States Constitution is the foundation of American law, and no laws may be passed or enforced if they are in conflict with the Constitution.
Although it is common to associate the study of constitutional law with study of the United States Constitution, it is important to remember that each state also has its own constitution, with its own body of case law interpreting its meaning.
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