Sources of Law

In the United States, the law is derived from four sources. These four sources are constitutional law, administrative law, statutes, and the common law (which includes case law). The most important source of law is the United States Constitution. All other law falls under, and is subordinate to, that document. No law may contradict the United States Constitution. For example, if Congress passes a statute that conflicts with the constitution, the Supreme Court may find that law unconstitutional, and strike it down.

American Common Law

Although the United States and most Commonwealth countries are heirs to the common law legal tradition of English law, American law tends to be unique in many ways. This is because the American legal system was severed from the British system by the Revolution, and afterwards, it evolved independently from the British Commonwealth legal systems. Therefore, when attempting to trace the development of traditional judge-made common law principles, that is, the few that have not already been overridden by newer laws, American courts often will look at British cases only up to the early 19th century. However, American courts will occasionally look to modern British cases for persuasive authority and as a point of comparison. Additionally, some older British statutes have crept into the American Common law. Two examples that many lawyers will recognize are the Statute of Frauds and the Staute of 13 Elizabeth. Although both these originally British Statutes have modern American common law and statutory equivilents, they are regularly cited in their original form. See the talk page.

Although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive. The earliest American cases, even after the Revolution, often did cite contemporary British cases, but such citations gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people.[1] Today, the vast majority of American legal citations are to domestic cases. Sometimes, courts, and casebook editors, do make exceptions for opinions on issues of first impression by brilliant British jurists, like William Blackstone or Lord Denning.

Some adherents of originalism and strict constructionism such as Justice Antonin Scalia of the United States Supreme Court argue that American courts should never look for guidance to post-Revolution cases from legal systems outside of the United States, regardless of whether the reasoning is persuasive, with the sole exception of cases interpreting international treaties to which the United States is a signatory. Others, such as Justices Anthony Kennedy and Stephen Breyer, disagree, and cite foreign law from time to time, where they believe it is persuasive, useful or helpful.

Federal Law

Federal law in the United States originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating commerce. Nearly all statutes have been codified in the United States Code. Many statutes give executive branch agencies the power to create regulations, which are published in the Code of Federal Regulations and also carry the force of law. 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.

State Law

Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of CaliforniaThe fifty American states are separate sovereigns with their own constitutions and retain plenary power to make laws covering anything not preempted by the federal Constitution or federal statutes. Nearly all states started with the same British common law base, although Louisiana law has always been strongly influenced by the French Napoleonic Code, but the passage of time has resulted in enormous diversity in the laws of the states. Over time, state courts expanded the old common law rules in different directions (through their traditional power to make law under stare decisis), and state legislatures passed various statutes expanding or overriding such judge-made rules.

Unlike other common law jurisdictions, all American states have codified some or all of their statutory law into legal codes, which was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field. New York's codes are known as "Laws." California and Texas simply call them "Codes." Most other states use "Revised Statutes," "Compiled Statutes," or some other name for their codes. California, New York, and Texas have separate subject-specific codes, while all other states and the federal government use a single code divided into numbered titles.

In some states, codification is often treated as a mere restatement of the common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature. In other states, there is a tradition of strict adherence to the plain text of the codes.

The advantage of codification is that once the state legislature becomes accustomed to writing new laws as amendments to an existing code, then the code will usually always reflect democratic sentiment as to what the current law is.

In contrast, in jurisdictions with uncodified statutes, like the United Kingdom, it is much harder to determine what the current law is. One has to trace back to the earliest relevant Act of Parliament, and then identify all later Acts which purported to amend the earlier Act or which directly overrode it. For example, when the UK decided to create a Supreme Court of the United Kingdom, it had to identify every single Act referring to the House of Lords that was still good law, and then amend all of them to refer to the Supreme Court.[2]

However, American codes are not the direct equivalents of their civil law counterparts (see civil code), and should not be confused with them. American codes do not have complete internal logical coherence nor do they currently aspire to such a status. They have been labeled mere "collections of statutes" due to the failure of all levels of government to allocate adequate resources towards maintaining the internal coherence of the codes.[3] What were intended to be elegant restatements of the common law have become bloated with a variety of chaotic ad hoc additions that would be unthinkable in civil law jurisdictions.[4]

Even worse, some states were never able to reconcile the old common law lawmaking model with the concept of codification. For example, California codes are to be liberally construed as a continuation of the common law to the extent that they harmonize with the common law or pre-code statutes. This hopelessly confusing compromise has created a continuing state of chaos in the judge-made law of California statutory interpretation.[5]

Criminal Law

In the arena of criminal law, all states have somewhat similar laws in regard to "higher crimes," such as murder and rape, although penalties for these crimes may vary from state to state. Additionally, state laws dealing with drug crimes 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.

However, 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, the laws controlling drunk driving were rather unstandardized prior to the 1990s.

Tort Law

United States tort law for personal injury tends to vary widely across the states. For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence of physical injury, but most do not. With practically any tort, there is a "majority rule" adhered to by most states, and one or more "minority rules."

Attempts at "Uniform" Laws

Efforts by various organizations to create "uniform" state laws have been only partially successful. The two leading organizations are the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The most successful and influential uniform laws are the Uniform Commercial Code (a joint ALI-NCCUSL project) and the Model Penal Code (from ALI).

Apart from model codes, the American Law Institute has also created Restatements of the Law which are widely used by lawyers and judges as substitutes for long, tedious citations of old cases (in order to invoke the long-established principles contained in those cases).

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