US federal law
   HOME

TheInfoList



OR:

The law of the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
comprises many levels of codified and uncodified forms of law, of which the supreme law is the nation's
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
, which prescribes the foundation of the
federal government A federation (also called a federal state) is an entity characterized by a political union, union of partially federated state, self-governing provinces, states, or other regions under a #Federal governments, federal government (federalism) ...
of the United States, as well as various civil liberties. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress,
treaties A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...
ratified by the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, regulations promulgated by the executive branch, and
case law Case law, also used interchangeably with common law, is a law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
originating from the federal judiciary. The
United States Code The United States Code (formally The Code of Laws of the United States of America) is the official Codification (law), codification of the general and permanent Law of the United States#Federal law, federal statutes of the United States. It ...
is the official compilation and codification of general and permanent federal statutory law. The Constitution provides that it, as well as federal laws and treaties that are made pursuant to it, preempt conflicting state and territorial laws in the 50 U.S. states and in the territories. However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual sovereign system of American federalism (actually tripartite because of the presence of
Indian reservation An American Indian reservation is an area of land land tenure, held and governed by a List of federally recognized tribes in the contiguous United States#Description, U.S. federal government-recognized Native American tribal nation, whose gov ...
s), states are the plenary
sovereign ''Sovereign'' is a title that can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin">-4; we might wonder whether there's a point at which it's appropriate to ...
s, each with their own
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.'' United States v. Lopez'', . 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 U.S. law (especially the actual "living law" of
contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...
,
tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
,
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, re ...
,
probate In common law jurisdictions, probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased; or whereby, in the absence of a legal will, the e ...
,
criminal In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
and family law, experienced by citizens on a day-to-day basis) consists primarily of
state law State law refers to the law of a federated state, as distinguished from the law of the federation of which it is a part. It is used when the constituent components of a federation are themselves called states. Federations made up of provinces, cant ...
, which, while sometimes harmonized, can and does vary greatly from one state to the next. Even in areas governed by federal law, state law is often supplemented, rather than preempted. At both the federal and state levels, with the exception of the legal system of Louisiana, the law of the United States is largely derived from the
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
system of
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
, which was in force in
British America British America collectively refers to various British colonization of the Americas, colonies of Kingdom of Great Britain, Great Britain and its predecessors states in the Americas prior to the conclusion of the American Revolutionary War in 1 ...
at the time of the
American Revolutionary War The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was the armed conflict that comprised the final eight years of the broader American Revolution, in which Am ...
. Professor Friedman points out that English law itself was never completely uniform across
England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It is located on the island of Great Britain, of which it covers about 62%, and List of islands of England, more than 100 smaller adjacent islands. It ...
prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.
However, American law has diverged greatly from its English ancestor both in terms of substance and procedure and has incorporated a number of civil law innovations.


General overview


Sources of law

In the United States, the law is derived from five sources:
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in ...
,
statutory law A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wi ...
, treaties, administrative regulations, and the common law (which includes case law).


Constitutionality

If Congress enacts a statute that conflicts with the Constitution, state or federal courts may rule that law to be
unconstitutional In constitutional law, constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applic ...
and declare it invalid. Notably, a statute does not automatically disappear merely because it has been found unconstitutional; it may, however, 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'', a lower court that enforces a statute of a kind previously declared unconstitutional will risk reversal by the Supreme Court. Conversely, any court that refuses to enforce a statute previously held by higher courts to be constitutional will risk reversal by the Supreme Court.


American common law

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 expressly outlawed by the Constitution, such as bills of attainder and general search warrants. 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, 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.''Ibid.'' 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 carriers. 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 are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants. Despite the presence of reception statutes, much of ''contemporary'' American common law has diverged significantly from English common law. Although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution precedents from England or the British Commonwealth. Early on, American courts, even after the Revolution, often did cite contemporary English cases, because appellate decisions from many American courts were not regularly reported until the mid-19th century. Lawyers and judges used English legal materials to fill the gap. 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 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 onot 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 M. Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention." Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.


Levels of law


Federal law

Federal law originates with the Constitution, which gives Congress the power to enact
statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
s for certain limited purposes like regulating
interstate commerce The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
. The
United States Code The United States Code (formally The Code of Laws of the United States of America) is the official Codification (law), codification of the general and permanent Law of the United States#Federal law, federal statutes of the United States. It ...
is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create
regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
s, which are published in the
Federal Register The ''Federal Register'' (FR or sometimes Fed. Reg.) is the government gazette, official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every wee ...
and codified into the
Code of Federal Regulations In the law of the United States, the ''Code of Federal Regulations'' (''CFR'') is the codification of the general and permanent regulatory law, regulations promulgated by the executive departments and agencies of the federal government of the ...
. From 1984 to 2024, regulations generally also carried the force of law under the ''Chevron'' doctrine, but are now subject only to a lesser form of judicial deference known as ''Skidmore'' deference. 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''. During the 18th and 19th centuries, 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 A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. Militaries are typically authorized and maintained by a sovereign state, with their members identifiable by a d ...
,
money Money is any item or verifiable record that is generally accepted as payment for goods and services and repayment of debts, such as taxes, in a particular country or socio-economic context. The primary functions which distinguish money are: m ...
, foreign relations (especially international treaties), tariffs,
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
(specifically
patents A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...
and
copyrights A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...
), and
mail The mail or post is a system for physically transporting postcards, letter (message), letters, and parcel (package), parcels. A postal service can be private or public, though many governments place restrictions on private systems. Since the mid ...
. Since the start of the 20th century, broad interpretations of the
Commerce Commerce is the organized Complex system, system of activities, functions, procedures and institutions that directly or indirectly contribute to the smooth, unhindered large-scale exchange (distribution through Financial transaction, transactiona ...
and Spending Clauses of the Constitution have enabled federal law to expand into areas like
aviation Aviation includes the activities surrounding mechanical flight and the aircraft industry. ''Aircraft'' include fixed-wing and rotary-wing types, morphable wings, wing-less lifting bodies, as well as lighter-than-air aircraft such as h ...
,
telecommunications Telecommunication, often used in its plural form or abbreviated as telecom, is the transmission of information over a distance using electronic means, typically through cables, radio waves, or other communication technologies. These means of ...
, railroads, pharmaceuticals,
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
, and
trademarks A trademark (also written trade mark or trade-mark) is a form of intellectual property that consists of a word, phrase, symbol, design, or a combination that identifies a product or service from a particular source and distinguishes it from ot ...
. 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 Labour laws (also spelled as labor laws), labour code or employment laws are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship be ...
, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like
insurance Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to protect ...
, 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).


Statutes

After the president signs a bill into law (or Congress enacts it over the president's veto), it is delivered to the Office of the Federal Register (OFR) of the
National Archives and Records Administration The National Archives and Records Administration (NARA) is an independent agency of the United States government within the executive branch, charged with the preservation and documentation of government and historical records. It is also task ...
(NARA) where it is assigned a law number, and prepared for publication as a slip law. 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
United States Statutes at Large The ''United States Statutes at Large'', commonly referred to as the ''Statutes at Large'' and abbreviated Stat., are an official record of Acts of Congress and concurrent resolutions passed by the United States Congress. Each act and resolu ...
, 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. Public laws are incorporated into the
United States Code The United States Code (formally The Code of Laws of the United States of America) is the official Codification (law), codification of the general and permanent Law of the United States#Federal law, federal statutes of the United States. It ...
, which is a codification of all general and permanent laws of the United States. The main edition is published every six years by the Office of the Law Revision Counsel of the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entities. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often ...
, and cumulative supplements are published annually. 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.


Regulations

Congress often enacts statutes that grant broad rulemaking authority to federal agencies. Often, Congress is simply too gridlocked 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, federal agencies are authorized to promulgate regulations. Under the principle of '' Chevron'' deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes. Regulations are adopted pursuant to the Administrative Procedure Act (APA). Regulations are first proposed and published in the Federal Register (FR or Fed. Reg.) and subject to a public comment period. Eventually, after a period for public comment and revisions based on comments received, a final version is published in the Federal Register. The regulations are codified and incorporated into the Code of Federal Regulations (CFR) which is published once a year on a rolling schedule. 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 (known as ''
Skidmore Skidmore may refer to: Places United States * Skidmore, Kansas * Skidmore, Maryland * Skidmore, Michigan, an unincorporated community * Skidmore, Missouri, a city * Skidmore, Texas * Skidmore, West Virginia * Skidmore Fountain, a public fountai ...
'' deference), but are not entitled to ''Chevron'' deference.


Common law, case law, and precedent

Unlike the situation with 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, thereby 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.''Hart v. Massanari'', 266 F.3d 1155 (9th Cir. 2001), citing ''Anastasoff v. United States'', 223 F.3d 898, ''vacated as moot on ehearingen banc'', 235 F.3d 1054 (8th Cir. 2000). 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 through strict adherence to the rule of ''stare decisis''. 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 implicitly 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 federal judge Alex Kozinski has pointed out, 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 (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...
theories of law, by which law was believed to have an existence independent of what individual judges said. Judges saw themselves as merely declaring the law which had always theoretically existed, and not as making the law. Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, in the way that scientists regularly reject each other's conclusions as incorrect statements of the laws of science. In turn, according to Kozinski's analysis, 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. The rule gradually developed, case-by-case, as an extension of the judiciary's
public policy Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...
of effective judicial administration (that is, in order to efficiently exercise the judicial power). The rule of binding precedent is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, because 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 The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
. The contemporary form of the rule is descended from Justice Louis Brandeis's "landmark dissent in 1932's ''Burnet v. Coronado Oil & Gas Co''.", which "catalogued the Court's actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority." Available via SpringerLink. Here is a typical exposition of how public policy supports the rule of binding precedent in a 2008 majority opinion signed by Justice Breyer:
Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." ''Burnet v. Coronado Oil & Gas Co.'' ..To overturn a decision settling one such matter simply because we might believe that decision is no longer "right" would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.
It is now sometimes possible, over time, for a line of precedents to drift from the express language of any underlying statutory or constitutional texts until the courts' decisions establish doctrines that were not considered by the texts' drafters. This trend has been strongly evident in federal substantive due process and Commerce Clause decisions. Originalists and political conservatives, such as Associate Justice Antonin Scalia have criticized this trend as anti-democratic. Under the doctrine of '' Erie Railroad Co. v. Tompkins'' (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 was either enacted as part of the Constitution or pursuant to constitutional authority). Federal courts lack the plenary power 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''). 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, 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. Under ''Erie'', such federal deference to state law applies only in one direction: state courts are not bound by federal interpretations of state law. Similarly, state courts are also not bound by most federal interpretations of federal law. In the vast majority of state courts, interpretations of federal law from federal courts of appeals and district courts can be cited as persuasive authority, but state courts are not bound by those interpretations. The U.S. Supreme Court has never squarely addressed the issue, but has signaled in dicta that it sides with this rule. Therefore, in those states, 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.


State and territory law

The fifty American states are separate sovereigns, with their own state constitutions,
state government A state government is the government that controls a subdivision of a country 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 autonom ...
s, and state courts. 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 both state statutes and regulations, as well as local ordinances. They retain plenary power 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 In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of a prerogative writ in England, issued by a superior court to direct that the recor ...
. State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 ''separate'' systems of tort law, family law, property law, contract law, criminal law, and so on. Most cases are litigated in state courts and involve claims and defenses under state laws. In a 2018 report, the
National Center for State Courts The National Center for State Courts (NCSC) is an independent, non-profit organization focused on improving the administration of justice in the United States and around the world. Its efforts are directed by a 27-member board of directors and th ...
' Court Statistics Project found that state trial courts received 83.8 million newly filed cases in 2018, which consisted of 44.4 million traffic cases, 17.0 million criminal cases, 16.4 million civil cases, 4.7 million domestic relations cases, and 1.2 million juvenile cases. In 2018, state appellate courts received 234,000 new cases. By way of comparison, all federal district courts in 2016 together received only about 274,552 new civil cases, 79,787 new criminal cases, and 833,515 bankruptcy cases, while federal appellate courts received 53,649 new cases.


State legal systems


Territorial legal systems

* Law of America Samoa * Law of Guam * Law of the Northern Mariana Islands * Law of Puerto Rico * Law of the U.S. Virgin Islands


Local law

States have delegated lawmaking powers to thousands of agencies,
township A township is a form of human settlement or administrative subdivision. Its exact definition varies among countries. Although the term is occasionally associated with an urban area, this tends to be an exception to the rule. In Australia, Canad ...
s,
counties A county () is a geographic region of a country used for administrative or other purposesL. Brookes (ed.) '' Chambers Dictionary''. Edinburgh: Chambers Harrap Publishers Ltd, 2005. in some nations. The term is derived from the Old French denoti ...
, cities, 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 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.


Legal subjects

American lawyers draw a fundamental distinction between procedural law (which controls the procedure by which legal rights and duties are vindicated) and substantive law (the actual substance of law, which is usually expressed in the form of various legal rights and duties). (The remainder of this article requires the reader to be already familiar with the contents of the separate article on
state law State law refers to the law of a federated state, as distinguished from the law of the federation of which it is a part. It is used when the constituent components of a federation are themselves called states. Federations made up of provinces, cant ...
.)


Criminal law and procedure

Criminal law involves the
prosecution A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...
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 In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
s can result in incarceration, 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 A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "''félonie''") to describe an offense that ...
), such as
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...
and
rape Rape is a type of sexual assault involving sexual intercourse, or other forms of sexual penetration, carried out against a person without consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person ...
, although penalties for these crimes may vary from state to state.
Capital punishment Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence (law), sentence ordering that an offender b ...
is permitted in some states but not others. Three strikes laws in certain states impose harsh penalties on repeat offenders. Some states distinguish between two levels: felonies and misdemeanors (minor crimes). Generally, most felony convictions result in lengthy
prison A prison, also known as a jail, gaol, penitentiary, detention center, correction center, correctional facility, or remand center, is a facility where Prisoner, people are Imprisonment, imprisoned under the authority of the State (polity), state ...
sentences as well as subsequent
probation Probation in criminal law is a period of supervision over an offence (law), offender, ordered by the court often in lieu of incarceration. In some jurisdictions, the term ''probation'' applies only to community sentences (alternatives to incar ...
, large fines, and orders to pay
restitution Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages (the law of compensation), restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability ...
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,
infraction A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence). Canada In Canada, summary of ...
s. These may result in fines and sometimes the loss of one's driver's license, but no jail time. On average, only three percent of criminal cases are resolved by jury trial; 97 percent are terminated either by plea bargaining or dismissal of the charges. 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 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 A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "''félonie''") to describe an offense that r ...
. The law of
criminal procedure Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail ...
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 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. The writ of ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian (usually a prison official) to ...
'' is often used by suspects and convicts to challenge their detention, while the Third Enforcement Act and '' Bivens'' actions are used by suspects to recover tort damages for police brutality.


Civil procedure

The law of
civil procedure Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or ca ...
governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law pleading was replaced by code pleading in 27 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 and equity courts was abolished in the federal courts by the adoption of the Federal Rules of Civil Procedure in 1938; it has also been independently abolished by legislative acts in nearly all states. The
Delaware Court of Chancery The Delaware Court of Chancery is a court of equity in the U.S. state of Delaware. It is one of Delaware's three constitutional courts, along with the Supreme Court and Superior Court. Since 2018, the court consists of seven judges. The cour ...
is the most prominent of the small number of remaining equity courts. Thirty-five states have adopted rules of civil procedure 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, all three states continue to maintain most of 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 may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discovery ...
, heavy reliance on live testimony obtained at deposition or elicited in front of a
jury A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...
, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, summary judgment) or a settlement. U.S. courts pioneered the concept of the opt-out
class action A class action is a form of lawsuit. Class Action may also refer to: * ''Class Action'' (film), 1991, starring Gene Hackman and Mary Elizabeth Mastrantonio * Class Action (band), a garage house band * "Class Action" (''Teenage Robot''), a 2002 e ...
, the "most extreme development of collective civil litigation" in the world, 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.


Contract law

Contract law A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...
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. 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. Parties are permitted to agree to arbitrate disputes arising from their contracts. Under the Federal Arbitration Act (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 or
fraud In law, fraud is intent (law), intentional deception to deprive a victim of a legal right or to gain from a victim unlawfully or unfairly. Fraud can violate Civil law (common law), civil law (e.g., a fraud victim may sue the fraud perpetrato ...
or something else which undermines the entire contract.


Tort law

Tort law generally covers any civil action between private parties arising from wrongful acts that amount to a breach of general obligations imposed by law and not by contract. This broad family of civil wrongs involves interference "with person, property, reputation, or commercial or social advantage." Tort law covers the entire imaginable spectrum of wrongs that humans can inflict upon each other, and it partially overlaps with wrongs also punishable by criminal law. It is primarily a matter of state law and is usually developed through case law from state appellate courts; it is rarely a matter of federal law, although some federal statutes, such as the Volunteer Protection Act and the Protection of Lawful Commerce in Arms Act, limit the liability of people who commit torts under state law. State tort-related statutes focus on discrete issues such as authorizing wrongful death claims (which did not exist at common law). Although the American Law Institute 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 The tort of negligent infliction of emotional distress (NIED) 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 ...
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 In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. Und ...
for defective products, which originated with judicial glosses on the law of
warranty In law, a warranty is an expressed or implied promise or assurance of some kind. The term's meaning varies across legal subjects. In property law, it refers to a covenant by the grantor of a deed. In insurance law, it refers to a promise by the ...
. In 1963, Roger J. Traynor of the
Supreme Court of California The Supreme Court of California is the Supreme court, highest and final court of appeals in the judiciary of California, courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly ...
threw away
legal fiction A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from ...
s based on warranties and imposed strict liability for defective products as a matter of
public policy Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...
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''.


Property law

Historically, American property law has been heavily influenced by English land law, and is therefore concerned with
real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, refers to parcels of land and any associated structures which are the property of a person. For a structure (also called an Land i ...
first and
personal property Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law (legal system), civil law systems, personal property is often called movable property or movables—a ...
second. It is also primarily a matter of state law, and the level of interstate diversity in the law of property is much more substantial than in contract and tort. Efforts by both the American Law Institute and the Uniform Law Commission to reduce such interstate diversity were spectacular failures.Peter B. Maggs
''The Uniform Simplification of Land Transfers Act and the Politics and Economics of Law Reform,''
20 Nova L. Rev. 1091, 1091–92 (1996).
The majority of states use a title recording system (coupled with privately provided title insurance) to manage title to real property, although title registration (''Torrens'' title) is also allowed in a small minority of states. Title to personal property is usually not registered, with the notable exceptions of
motor vehicle A motor vehicle, also known as a motorized vehicle, automotive vehicle, automobile, or road vehicle, is a self-propelled land vehicle, commonly wheeled, that does not operate on railway track, rails (such as trains or trams), does not fly (such ...
s (through a state department of motor vehicles or equivalent), bicycles (in certain cities and counties), and some types of firearms (in certain states).


Family law

In the United States, family law governs relationships between adults, and relationships between parents and their children. As a discrete area of law worthy of its own specialists and law professors, American family law is relatively young in comparison to European family law; it did not take flight until the no-fault divorce revolution of the 1960s. Before the 1950s, widespread religious, legal, and social prohibitions against divorce in the United States meant that divorces were rare, were often seen as fact-driven matters (meaning that they were perceived as turning on each case's unique facts and not broadly generalizable legal principles), and rarely went up on appeal. The rise of no-fault divorce caused divorce litigation to shift away from the question of who was at fault for the collapse of the marital relationship and to focus instead on issues such as
division of property Division of property, also known as equitable distribution, is a division of property and debt between spouses when the marital relationship is ending. It may be done by agreement, through a property settlement, or by judicial decree. Distribut ...
, spousal support, and child support. Family cases are traditionally a matter of state law and are virtually always heard only in state courts. Certain kinds of contract, tort, and property civil actions involving state law issues can be heard in federal courts under diversity jurisdiction, but federal courts decline to hear family cases under the "domestic relations exception" to diversity jurisdiction. Although family cases are heard in state courts, there has been a trend towards federalization of certain specific issues in family law. State courts and the lawyers who practice before them must be aware of federal income tax and bankruptcy implications of a divorce judgment, federal constitutional rights to abortion and paternity, and federal statutes governing interstate child custody disputes and interstate child support enforcement.


See also

* Admission to the bar in the United States * Attorneys in the United States *'' Black's Law Dictionary'' * Courts of the United States * Legal education in the United States ** Law school in the United States * Legal systems of the world * Privacy laws of the United States


Lists

* Legal research in the United States * List of sources of law in the United States * List of Uniform Acts (United States)—intended for state-level legislation *
List of United States federal legislation This is a chronological, but still incomplete, list of United States federal legislation. Congress has enacted approximately 200–600 statutes during each of its 119 biennial terms so more than 30,000 statutes have been enacted since 1789. At t ...
* List of United States Supreme Court cases


References


Further reading

* Farnsworth, E. Allan. ''An Introduction to the Legal System of the United States'', 4th edn. Ed. Steve Sheppard. Oxford: Oxford University Press, 2010. * Friedman, Lawrence M. & Grant M. Hayden. ''American Law: An Introduction'', 3rd edn. NY: Oxford University Press, 2017. * Hadden, Sally F. & Alfred L. Brophy, eds. ''A Companion to American Legal History''. Malden, Mass.: Wiley-Blackwell, 2013. * Hall, Kermit L. et al., eds. ''The Oxford Companion to American Law''. Oxford: Oxford University Press, 2002
excerpt and text search
* * Schubert, Frank August. ''Introduction to Law and the Legal System'', 12th edn. Stamford, Conn.: Cengage Learning, 2022. * Walston-Dunham, Beth & John D. DeLeo, Jr. ''Introduction to Law'', 7th edn. Boston, Mass.: Delmar Cengage Learning, 2020.


Legal history

* Edwards, Laura F. ''A Legal History of the Civil War and Reconstruction: A Nation of Rights'' (Cambridge University Press, 2015) 212 pp. * Friedman, Lawrence M. ''A History of American Law'' (3rd ed. 2005) 640 pp * Friedman, Lawrence M. ''American Law in the Twentieth Century'' (2002) * Hall, Kermit L. ''The Magic Mirror: Law in American History'' (1989) * Hall, Kermit L. et al. ''American Legal History: Cases and Materials'' (2010); 752 pages * Hoeflich, Michael H. ''Roman and civil law and the development of Anglo-American jurisprudence in the nineteenth century''. Athens: University of Georgia Press, 1997. * Horwitz, Morton J. ''The Transformation of American Law, 1780–1860'' (1977) * Horwitz, Morton J. ''The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (1992) * Hovenkamp, Herbert ''The Opening of American Law: Neoclassical Legal Thought, 1870–1970'' (2015) * Howe, Mark de Wolfe, ed. ''Readings in American Legal History'' (2001) 540pp * Johnson, Herbert A. ''American Legal and Constitutional History: Cases and Materials'' (2001) 733 pp * *Schwartz, Bernard. ''The Law in America''. (Evolution of American legal institutions since 1790). (1974). * White, G. Edward. ''Law in American History''. 3 vols. NY: Oxford University Press, 2012–19.


Colonial

* *


Lawyers

* Abel, Richard L. ''American Lawyers'' (1991) * Chroust, Anton-Hermann. ''The Rise of the Legal Profession in America'' (2 vols. 1965), to 1860 * Drachman, Virginia G. ''Sisters in Law: Women Lawyers in Modern American History'' (2001) * Nizer, Louis. '' My Life in Court'' (1978) Popular description of a lawyer's practice * Vile, John R. ''Great American Lawyers: An Encyclopedia'' (2001) * Vile, John R. ''Great American Judges: An Encyclopedia'' (2003) * Wortman, Marlene Stein. ''Women in American Law: From Colonial Times to the New Deal'' (1985)


Philosophy of law

* Cardozo, Benjamin N., ed. ''An Introduction to Law''. (1957). (Essays by eight distinguished American judges) * Hart, H. L. A. '' The Concept of Law''. (1961). (Introductory text on the nature of law) * Llewellyn, Karl N. "The Bramble Bush", in ''Karl N. Llewellyn on Legal Realism''. (1986). (Introductory text on the nature of law) * Pound, Roscoe. ''Social Control Through Law''. (Nature of law and its role in society). (1942)


External links


Official U.S. Government page on Laws and Legal IssuesOfficial U.S. Government page for U.S. federal courtsTexts of U.S. federal laws and U.S. state lawsU.S. Code collection
at Cornell University's Legal Information Institute {{DEFAULTSORT:Law Of The United States