CHAPTER 5

Sources of American Law

Introduction
English colonists brought the law of England with them
American law developed its own unique characteristics over time
Absorbed ideas from the Spanish, French, and Mexican legal systems

Laws of other countries and international laws affect decision making in American courts
The Framework
of American Law
What Is the Law?
Depends on a person’s views on morality, ethics, and truth
Defined as a body of rules of conduct established and enforced by the government
Laws establish rights, duties, and privileges for the citizens they govern
Law provides stability, predictability,
and continuity
The Framework
of American Law
Primary Sources of American Law
Case law and common law doctrines
The U.S. Constitution and state constitutions
Statutes
Regulations created by administrative agencies
The Framework
of American Law
Secondary sources of law
Books and articles that summarize, synthesize, and explain the primary sources of law
Legal encyclopedias, treatises, law review articles, compilations of law
Case Law and the Common Law Tradition
The Doctrine of Stare Decisis
Cornerstone of the English and American judicial systems
Means “to stand by things decided”
Binding authority
Persuasive precedents
Departures from precedent
These cases often receive great publicity
Case of first impression
These cases often involve new technology
Case Law and the Common Law Tradition
Remedies at Law versus Remedies in Equity
Courts of law awarded limited remedies
Remedies at law included land, items of value, or money
Courts of equity awarded a remedy in equity
Now separate courts are combined in most states, so both types of remedies can be sought in a single lawsuit

Case Law and the Common Law Tradition

Remedies at Law versus Remedies in Equity (continued)
Equitable principles and maxims
Whoever seeks equity must do equity
Equity requires clean hands
Equity will not suffer a right to exist without a remedy
Equity values substance over form
Equity aids the vigilant, not those who sleep on their rights
Case Law and the Common Law Tradition
Remedies at Law versus Remedies in Equity (continued)
Doctrine of laches
Equitable remedies 
Specific performance
Injunction
Case Law and the Common Law Tradition
The Common Law Today
Common law is law announced in previous court decisions
To clarify common law rules and principles
Restatements of the Law
Published by the American Law Institute (ALI)
Summarize and explain common law rules
These do not have the force of law
Important secondary sources of legal analysis
Case Law and the Common Law Tradition
The Terminology of Case Law
Case titles
Case citation
The parties
Plaintiff, defendant, co-defendants, appellant, appellee
Judges and justices
Case Law and the Common Law Tradition
The Terminology of Case Law (continued)
Decisions and opinions
Procedural history of case, summary of relevant facts, court’s reasons for its decision, rules of law that apply, the judgment
Unanimous, majority, plurality, concurring, dissenting
Case Law and the Common Law Tradition
The Adversarial System of Justice
Parties act as adversaries or opponents
The goal is to win
Criticisms of the adversarial system
Pressure to win cases
Others affected by success or failure
Contributes to a lack of integrity
Attorneys may prolong disputes, obscure the truth for higher income
Yet most Americans believe in the due process of law
Constitutional Law
The Federal Constitution
Nation’s highest law
Article IV: the supremacy clause
Constitutional rights
Bill of Rights
Application to state governments
The courts and constitutional law
Courts balance the right to free speech
Free speech and the Internet
Constitutional Law
State Constitutions
Each state has a constitution
General organization of state government
Its powers
Its limits
Tenth Amendment to U.S. Constitution
Reserves all powers not granted to the federal government to the states
State constitutions are supreme within states’ borders unless they conflict with U.S. Constitution
Statutory Law
Federal Statutes
Laws enacted by U.S. Congress
Protection of intellectual property rights
Regulation of purchase and sale of corporate stock
Prohibition of employment discrimination
Protection of the environment
Protection of consumers
The federal government’s constitutional authority to enact laws
The federal lawmaking process
Public law number (P.L. number)
Statutory Law
State Statutes
Conflicts between federal and state laws
Preemption
The state lawmaking process
Local ordinances
Statutory Law
Uniform Laws
National Conference of Commissioners on Uniform State Laws
Group of legal scholars and lawyers
Drafted uniform statutes for adoption by the states
Continues to issue uniform statutes
Adoption of uniform laws is a state matter
Statutory Law
Interrelationship of Various Areas of Law
Due process of the law
Application to criminal law
Application to employment law
Administrative Law
Important Source of American Law
Administrative Agency
Established to perform a specific function
Affects most aspects of a business’s operation
Federal Level
Many administrative agencies
Variety of missions
Administrative Law
Agency Creation
Congress delegates implementation
Enabling legislation for the agency
Name
Purpose
Composition
Powers
Administrative Law
Rulemaking
One of the major functions of an administrative agency
Administrative Procedure Act of 1946
Agency must give public notice
Agency must allow time for interested parties to comment
Writing of the final rule, publication in Federal Register
Administrative Law
Investigation and Enforcement
Agencies have investigatory and prosecutorial powers
Can request specific papers, files, or other documents
May conduct on-site inspections
May search a home, an office, or a factory
Most actions resolved through negotiated settlements, without adjudication
Administrative Law
Adjudication
Trial-like hearing
Administrative law judge (ALJ)
Presides over hearing
Administers oaths
Takes testimony
Rules on questions of evidence
Makes determinations of fact
National
and International Law
Business is increasingly global
Issues relating to foreign parties or governments
Laws of other nations affect outcomes
Paralegal working with clients in foreign countries may need to be familiar with international law

National
and International Law
National Law
Law of a particular nation
Laws represent unique cultural, historical, economic, and political background of each nation
English common law heritage
England, United States, countries that were once colonies
National
and International Law
National Law (continued)
Civil law system
Most European nations base law on Roman civil law
Primary source of law is statutory code
Not obligated to follow precedent
National
and International Law
International Law
Body of written and unwritten laws
Observed by independent nations
Governs acts of individuals as well as governments
Enforced for reasons of courtesy or expediency
Treaties
Bilateral
Multilateral
International organizations
Summary
The law has been defined variously over time
Law consists of a body of rules of conduct established and enforced by the controlling authority of a society
There are four primary sources of American law
Case law consists of the decisions issued by judges in cases that come before the court
Summary
If no precedent exists, the court considers the matter as a case of first impression
In medieval England, two types of courts emerged: courts of law and courts of equity
The common law governs all areas of law not covered by statutory law
Constitutional law is all law that is based on the provisions in the U.S. Constitution, and the various state constitutions
Summary
Statutory law consists of all laws enacted by federal Congress, state legislature, or municipality
Administrative law consists of the rules, regulations, and decisions of administrative agencies at all levels of government