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Aside from being “The Big Brother” and “The Land of the Yankee-Doodles”, the United States of Amer ica is a North American republic containing 50 states, 48 adjacent states in North America, plus Alaska in northwest North America and the Hawaiian Islands in the Pacific Ocean. Yes, the star-spangled American flag, consisting of 50 stars, is representative of these 50 states and is also called the “Old Glory”. So, how are these states organized and governed? More importantly, how does the legal system of the US work? This module will tell you.
The maze of the US Government system with its little units such as cities, villages, townships, and county governments has two primary divisions, State governments and the Federal government.
We shall study the structure and working of the Federal and State governments separately for purposes of clarity.
THE FEDERAL GOVERNMENT
The legislative wing of the American Federal government is known as the “congress”. It consists of two houses (or chambers),
1. The Senate and
2. The House of Representatives.
Capitol Building in Washington, D.C, where both, the Senate and the House of Representatives, are located.
Members to both the houses are elected. These members create laws called “statutes”. When a new law is being enacted, it is introduced by either chamber for consideration, at which stage it is called a “bill”. Some statutes borrow heavily from the law laid down by the courts, referred to as “Common law” or “Case law”. The Congress has the option of adopting these laws by a process of “codification”. The whole body of statutes and the Constitution is called “enacted law”.
The President, along with some federal administrative agencies, constitutes the executive wing. Though the President wields control over many administrative agencies, there are some administrative agencies that are rather independent. For example, while the Department of Justice is an administrative agency that falls under the executive wing, the Federal Trade Commission is an independent agency. In fact, because the administrative agencies have full-fledged enforcement mechanisms, they can enforce some laws enacted by Congress without any undue interference. Such agencies are also permitted to enact and adopt necessary rules and regulations to ensure the enforcement of these laws.
The federal judicial system has three different levels of courts that resolve disputes,
US Supreme Court (Highest Court)
US Courts of Appeals (Appellate courts)
US District Court (Trial Courts)
As the “district court” level, disputes are decided by either a judge or a jury. At the intermediate “appellate court” level, the courts hear appeals of decisions arising from the district court. The highest appellate court is the “Supreme Court”, the decisions of which cannot be appealed any further.
A court hears a case only when it has the jurisdiction to hear it. That is, when the court is authorized to hear that case. Federal courts hear all matters related to federal law, and also matters arising from parties of different states, called “diversity cases”. These diversity cases could also involve state law issues, in which case the amount in question must be a minimum of $75,000. It is very essential to be clear on the question of jurisdiction as discussed below, before actually delving into the technicalities of a dispute.
The District Courts.
The district court or the trial court is the court of “original jurisdiction” in the sense that it is the first court that parties approach (including a person, corporation or other entity) in relation to disputes seeking a federal remedy. This court also hears federal bankruptcy court decisions, and appeals from some of the administrative agency decisions. The district courts then decide questions of law and equity. Both civil and criminal cases are heard in a district court. District courts interpret statutes and regulations, based on the common law, which are earlier judgments and judicial opinions on the subject.
For federal jurisdiction to exist on a particular case, the bases can be,
· The US federal government as the plaintiff or defendant to a case.
· The complaint could be based on a “Federal jurisdiction question”
Meaning that it calls into question some aspect of a federal law (the Constitution or a federal statute);
· Cases that fall under specific areas such as “admiralty” and “maritime”, that mostly occur within the navigable boundaries of the United states;
· “Diversity cases” in which the plaintiff and the defendant come from different states, and the disputed amount exceeds $75,000; and
· “Alienage cases” in which one party is a US citizen and the other is a foreign national, who is not a resident of the US Even in these cases, the amount called into question must exceed $75,000.
Please go to your eMentor to get a complete list of the Federal district courts in the US.
The Appellate Courts
The appellate courts of the US, which constitute the second tier of the court system, decide appeals from the district courts within their respective federal judicial circuits. Under certain circumstances, they can also hear cases from other designated federal courts, or administrative agencies. These courts, also known as the “Circuit Courts”, are thirteen in number, and are geographically defined, except for the thirteenth court of appeal called the United States Court of Appeals for the Federal Circuit, which enjoys a nationwide jurisdiction over certain appeals based on subject matter. These courts are “courts of law”, rather than “courts of facts”, decide matters of law instead of considering new factual evidence. These courts do not have system of hearing witnesses. The transcripts of district court proceedings are produced for review before a panel of judges, who make decisions. The following is the circuit map of the US Courts of Appeals.
To understand the composition of the appellate courts in the US, please read a detailed list on available on your eMentor.
The Supreme Court
Article III of the American Constitution created the Supreme Court, constituting of the Chief Justice and eight associate justices who hear and decide cases involving important questions about the interpretation and fair application of the Constitution and the federal law. This court is the highest court, and has discretion to consider or not to consider issues. This discretion is referred to as “certiorari”. If the court decides to hear an issue, it is said to have granted certiorari, while if it decides not to, it is said have denied certiorari. Cases decided by the Supreme Court are typically appeals arising from decisions of lower courts. Being the highest appellate court, the decision of the Supreme Court is final and cannot be challenged any further.
THE STATE GOVERNMENTS
The organization of the state governments is similar to that of the Federal Government. Each State has a separate constitution that defines the organization of that state, and the relationship between the branches of government the legislative, the executive ad the judiciary. This means that there is a total of fifty-one constitution in the US- one federal constitution, and one each for the fifty states. The legislative branches operate in a manner very similar to that of the Congress at the federal level. Some state legislatures too create administrative agencies, through enabling laws, and empower them to enforce certain state laws.
The State Judicial System
States also have the power to establish courts to hear various disputes. Each state has its own judicial system, which, in most cases, reflects the federal three-level system. This is not true, however, to all states. Some states eliminate the appellate court.
“Trial Courts” consider the facts and legal aspects of a case. At this level, there might be a family courts, municipal courts or a small claims courts, with limited jurisdictions, mostly according to the quantum or money (also referred to as the pecuniary jurisdiction) in dispute.
“Appellate Court” level is selectively present in different states. As in the federal court system, no new factual evidence is considered or witnesses heard in most appellate courts (an appellate court, which has original jurisdiction, and is hearing a case for the first time, may consider facts and evidence). Sometimes, states have a second level appellate court, like the Supreme Court in the federal system, where the final appeals are heard. States like Texas and Oklahoma, however, have two such courts one for criminal and the other for civil cases.
If you want to find out which states have eliminated the intermediate appellate court, please go through the list available on your eMentor.
It is also possible that the Supreme court is not the highest court in a state. This is the case with New York.
With this, we conclude the two government systems in the United States.
PRIMARY SOURCES OF LAW
The US Constitution: is the supreme law of the land requiring all laws, whether federal or state, to comply with it. Federal and State courts use the US Constitution to decide whether a statute or regulation is proper and whether it can be enforced. Constitutional research can be performed online by accessing Findlaw.com or the US government website for the US Constitution www.access.gpo.gov/congress/senate/constitution
II. FEDERAL STATUTES: are published under government authority as well as by private publishers. They are published in publications known as Reporters. When a Reporter is published under government authority it is called an Official Reporter.
United States Code: can be found in a series of books which are organized, indexed and published under a specific title. They are published in the United States Code (USC) which consists of 50 separate numbered titles. This code is published by the US Government Printing Office (GPO). At times the code/statute that one is looking for is not available in the USC as there is a delay in getting it printed. The researcher can, therefore, refer to two other publications put out by private publishers.
The United State Code can be found in an annotated form in the United States Code Annotated (USC.A.) published by the West Group and also the United States Code Service (USC.S.) published by Lexis Publishing Company.
TABLE I-Citation Format for Federal Statutes
Citation for United States Code: 16 USC.719(b) (1)
16 the Title Number of the United States Code (Conservation), 719 is the Section number (not the page number), (b) is the subsection, and (1) is the paragraph number.
Citation for United States Code published by West or Lexis Publishing Company:
42 USC. A. S 2000a-h
42 the Title Number, USC.A. stands for United States Code Annotated, S 2000 is the Section number (not the page number), a-h are the subsection letters. The Annotated Code is published by the West Group.
18 USC.S.S 1961
18 the Title Number, USC.S. stands for United States Code Service, S 1961 is the Section number (not the page number). This is the Lawyer’s Edition published by Lexis Publishing.
Note: Other sources which give information about the Federal Statutes before they are enacted into law are:
1) United States Statutes at Large (Stat) published by the US Government Printing Office (example of citation – 104 Stat.3359);
2) United States Code Congressional and Administrative News (USCCAN) published by the West Group;
3) Congressional Information Service (CIS) which has legislative histories, abstracts, annual index and cumulative index volumes;
4) Congressional Index; and
5) Congressional Record.
FEDERAL ADMINISTRATIVE LAW: can be found in the Code of Federal Regulations (C.F.R.) and the Federal Register (F.R.).
EXECUTIVE ORDERS &PROCLAMATIONS: can be found in the (a) Public Papers of the President (b) Weekly Compilation of President’s Documents.
III. FEDERAL CASES: also known as court opinions or decisions are found in:
Federal Reporters: The West Group has created a network of national reporters called the National Reporter System which has decisions from every United States jurisdiction. Besides the USC.A. Reporter, it publishes decisions from the United States Courts of Appeals in the Federal Reporter. Decisions of the United States District Court are published in the Federal Supplement.
Table II- US Supreme Court Case Citation Formats
United States Supreme Court --- United States Reports (US)
Supreme Court Reporter (S.Ct.)
United States Supreme Court Reports,
Lawyer’s Edition (L.Ed., L.Ed.2d or 3d)
United States Courts of Appeals -- Federal Reporter (F., F.2d, F.3d.)
United States District Courts -- Federal Supplement (F.Supp., F.Supp.2d)
Federal Rules Decisions (F.R.D.)
Examples of Citation formats for Federal Cases
A United States Supreme Court Case is cited as follows:
Citation in an official reporter (United States Reporter): 420 US213
420 refers to the Volume Number, US is the abbreviation of the United States, and 213 is the page number.
Citation in unofficial reporters (West Publication) Supreme Court Reporter: 97 S.Ct.658
97 refers to the Volume Number, S.Ct. is the abbreviation of the Supreme Court Reporter, and 658 is the page number.
Citation in unofficial reporter (Lexis Publication/Lawyers Edition) US Supreme Court Reports, Lawyer’s edition): 45 L.Ed.2d 147 (1976)
45 refers to the Volume Number, L.Ed. (Lawyer’s Edition) of the USSupreme Court Reports, 147 is the page number, 1976 is the year when the case was decided.
Example of a full citation,
Campbell v. Acuff-Rose Music, Inc., 510 US569; 114 S.Ct.1164; 127 L.Ed 2d 500
A Federal Court of Appeals Case is cited as:
Amstar Corporation v. Domino’s Pizza, Inc., 615 F.2d.252 (5th Cir. 1980).
The name of the case is Amstar Corporation v. Domino’s Pizza, Inc. It is found in Volume Number 615 of the Federal Reporter Second Series at page 252. It was decided in the fifth Circuit in the year 1980.
A Federal District Court Case is cited as:
Blue Bell Inc. v. Reusman, D.C. Ga, 335 D.Camstar Corporation v. Domino’s Pizza, Inc., 615 F.2d. 252 (5th Cir.1980).
The name of the case is Amstar Corporation v. Domino’s Pizza, Inc. It is found in Volume Number 615 of the Federal Reporter Second Series at page 252. It was decided in the Fifth Circuit in the year 1980.
Cases are also reported in various other reporters such as:
Federal rules Decisions cited as 172 F.R.D. 549
Bankruptcy Reporter cited as 209 B.R.28
Federal Claims Reporter cited as 37 Fed.Cl.793
Military Justice Reporter --- USArmed Forces cited as 46 M.J.128
Military Justice Reporter --- A.F.Ct. Crim.App.cited as 46 M.J.744
Veterans Appeals Reporter cited as 10 Vet. App.247
State Constitutions: provide the same help and guidance at the state level that the USConstitution does at the federal level. The internet also provides legal resources pertaining to the states. Among the various websites available, the most useful are Yahoo(www.yahoo.com/loaw), the Cornell University Law School also has a website (www.law.cornell.edu/states/) which provides useful information about the states and provides state laws for certain states. 50States (www.50states.com) is another very useful website for obtaining this type of information.
State Statutes: are organized by subject matter and are usually published in two types of formats: (a) Annotate volumes with explanatory information about each statute and references to court decisions that have interpreted the statutes, and (b) non-annotated volumes, which contain only the text of the statutes.
Examples of a State Stature Citation: 23 Vt.Stat.Ann.s 1185
State Cases: Decisions of the state appellate courts are published in the official state reporters. Both supreme and intermediate appellate court decisions are published in both official reports and the National Reporter system (a series of “Regional Reporters” published by the West Group). Cases in lower courts are rarely published as it is up to the lower courts to decide whether to publish their decisions.
List of State Reporters
1. Atlantic Reporter cited as
This reporter contains cases reported from the Atlantic Region States (Connecticut, Delaware, District of Columbia, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont).
2. North Eastern Reporter cited as
This reporter has cases decided by the North Eastern Region States (Illinois, Indiana, Massachusetts, New York, Ohio).
NOTE: New York State has a separate reporter known as New York Supplement and cited as N.Y.S., N.Y.S.2D.
Illinois also has its own Reporter known as Illinois Decisions (III.Dec.)
3. North Western Reporter cited as
This reporter has cases decided by the courts in the Western Region States (Iowa, Michigan, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin).
4. South Eastern reporter cited as
This Reporter contains decisions of the courts in the South Eastern Region States (Georgia, North Carolina, South Carolina, Virginia, and West Virginia).
5. South Western Reporter cited as
This reporter contains cases decided by Alabama, Florida, Louisiana, and Mississippi.
6. Southern Reporter cited as
This reporter has cases decided by the courts in the Southern Region States (Alabama, Florida, Louisiana, and Mississippi).
7. Pacific Reporter cited as
This Reporter has cases decided by the courts in the Pacific Region (Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kanas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington, and Wyoming).
Judicial Opinions are sometimes available by accessing that particular court’s web site.
NOTE: Adapted using “Legal Research in a Nutshell” by Cohen and Olson,
“The Legal Research Manual: A Game Plan for Legal Research and Analysis” by Wren & Wren, “Legal Research: How to Find & Understand the Law” by Attorneys Stephen Ellis and Susan Levinkind.
SECONDARY LEGAL SOURCES
When there is a legal topic about which one has limited knowledge, one can find out more about it by referring to secondary legal sources. A list of these sources is given below along with a brief explanation of the contents of the source.
1. American Jurisprudence (Am Jur) and Corpus Juris Secundum (C.J.S.): are legal encyclopedias which provide an excellent overview of American Law.
2. State Encyclopedias: help in researching a question which deals with the law of that particular state.
3. American Law Reports (A.L.R.): cover issues primarily arising under state statutes and in state cases.
4. American Law Reports Fed (A.L.R.Fed): cover issues that arise under federal statutes or in federal court.
5. Note: A.L.R. and A.L.R. Fed. Differ from the legal encyclopedia in that they don’t attempt to cover every subject. ALRs provide exhaustive treatments of specific legal issues and have in-depth annotations which cover all sides of every question and present principles deduced from the cases.
6. Form Books: are a collection of legal documents and are of great help if a research question involves either state or federal procedure, whether civil or criminal. American Jurisprudence Legal Forms is an example of a form book. A state may also have its own form book.
7. Practice Manuals: like form books, contain lots of forms and explain how to use them. However, unlike form books which tend to cover the entire range of legal practice, they cover only a specialized area of practice.
8. Legal Periodicals: Current Law Index and Index to Legal Periodicals are used to locate articles about legal topics. The LEGALTRAC is a computerized index to legal periodicals and is part of a larger database called INFOTRAC. INFOTRACT also contains useful information on a number of additional resources such as business and general periodicals.
9. Law Review Articles: are also good starting law points if the researcher is unfamiliar with a topic. These articles are written by students under the supervision of
10. their professors and also by other professionals. The FindLaw index (www.findlaw.com) is a good way to locate articles in law reviews and law journals.
11. Restatements of the Law: cover topics such as contracts, torts, and property in an exhaustive manner but do not constitute the law. They are not very helpful to a novice researcher looking for a good background resource. They are scholarly in nature and published by an organization called the American Law Institute.
12. LEXIS and WESTLAW: are legal databases which also provide secondary materials. These databases are available only to subscribers to these databases.
13. Hornbooks: are textbooks for law students offering a basic understanding of the topic or subject matter. They are an extremely useful teaching tool and cover entire legal topics.
14. Treatises and Monographs: Treatises usually cover an entire area of the law unlike a monograph which covers just a small portion of a general legal filed or introduces a new concept into the legal realm. Unlike hornbooks (textbooks), they provide in-depth reference materials.
15. INTERNET: Legal information is also available on the internet. A majority of the courts have websites which provide useful information about the procedures of that court and also have statutes and regulations on their websites. Findlaw.com is an excellent search engine which allows a researcher to key in search words which help in generating topical materials.
16. Self-help Law Resources: Many private publishers have books which help researchers in understanding the law and are in the nature of a “how to do it” resource. Nolo Publishers is the leading publisher for these types of legal publications.
17. Continuing Legal Education Publications: There are several providers of continuing legal education who publish books for the seminars. These are another excellent source of secondary information.
18. US Government Websites: provide free information on their various websites and also have links which lead to other sources of information.
19. Law schools’ Websites: contain a lot of information about various topics, and are another source of legal information for a novice or experienced researcher.
20. Loose-leaf Services: are publications which offer exhaustive information devoted entirely to a certain area of law, which is very useful for those who specialize in certain areas of the law such as bankruptcy, taxation, social security disability, etc. These publications are a loose-leaf compilation of recent developments in that particular area of the law and are up-dated weekly or monthly by loose-leaf supplements.
21. West Digests: contain summaries of cases, arranged also by subject matter or topic.
Each topic is given a key number: Digests contain the head notes found in the National Reporter System.
United States Government Manual: is one of the most important reference books of the federal government, and provides an overview of the US government focusing on the executive branch.(www.gpoaccess.gov)
The above sources are a good starting point for a research project. It is up to the researcher to decide where and how to begin his search depending upon the project.
NOTE: Adapted using “Legal Research in a Nutshell” by Chosen and Olson, “The Legal Research Manual: A Game Plan for Legal Research and Analysis” by Wren & Wren, “Legal Research: How to Find & Understand the Law” by Attorneys Stephen Ellis and Susan Levin kind.
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