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The American Legal System

Sources of Law

Constitutional Law is based on a formal document that defines broad powers. Federal constitutional law originates from the U.S. constitution. State constitutional law originates from the individual state constitutions. Statutes and Ordinances are legislation passed on the federal, state, or local levels. Common Law is based on the concept of precedence - on how the courts have interpreted the law. Under common law, the facts of a particular case are determined and compared to previous cases having similar facts in order to reach a decision by analogy. Common law applies mostly at the state level. It originated in the 13th century when royal judges began recording their decisions and the reasoning behind the decisions. Administrative Law - federal, state, and local level. Administrative law is made by administrative agencies that define the intent of the legislative body that passed the law.

The sources of law have both vertical and horizontal dimensions. Vertical dimensions include federal authority, state authority, and concurrent authority. Federalism refers to this form of government, in which there is national and local authority. Federal authority covers laws related to patents, pensions and profit sharing, and labor issues. State authority covers business association, contracts, and trade secrets. Concurrent authority covers security law, tax law, and employment law. Note that employment law refers to non-union relationships; labor law refers to union relationships. The horizontal dimension is related to the separation of power between the executive branch, which creates administrative law, the legislative branch, which creates statutes, and the judicial branch, which creates common law. The judicial system in the U.S. has a pyramid structure consisting of fewer higher level courts and more lower level courts: -- Supreme Court ---------- Appellate Courts ---------------------------- Trial Courts --------------------Actually, there are two pyramid structures - one for federal courts and one for state courts. State courts may use different terminology; for example, trial courts may be called courts of common plea, appellate courts may be called superior courts or commonwealth courts. Classifications of Law Substantive law vs. procedural law: Substantive law creates, defines, and regulates legal rights and obligations. Procedural law defines the rules that are used to enforce substantive law.

Common law vs. statutory law: Common law is defined by judges. Statutory law is passed by legislatures. For example, the Securities Act of 1933 is statutory law. Criminal law vs. civil law: Criminal law is between private parties and society. Civil law is between private parties only. Jurisdiction Jurisdiction is the power of a court to hear a particular case. In order for a court to have jurisdiction, it must have both subject matter jurisdiction (the power to hear the type of claim being asserted) and personal jurisdiction (power over the person). Subject Matter Jurisdiction Article III of the U.S. constitution states that federal courts have only certain types of subject matter jurisdiction. To satisfy subject matter jurisdiction, a federal court must have either: 1. Federal question jurisdiction - federal courts have federal question jurisdiction in cases involving the federal constitution, federal statutes, or federal treaties. or 2. Diversity jurisdiction - diversity jurisdiction requires both a) $75,000 or more at issue, and b) the parties must be residents of different states. Diversity jurisdiction applies for example, to a case in which a traveler passing through a different state from his/her home state is accused of a serious offense, and in which the plaintiff, attorneys, and judge may all be close friends. or 3. suit by or against the U.S. government, or 4. Miscellaneous - certain types of cases such as those related to patents, bankruptcy, admirality (maritime cases), trademarks and copyrights, etc. Items 1) and 2) can be tried in either state or federal courts (concurrent state/federal jurisdiction). Items 3) and 4) may be heard only by federal courts. Personal Jurisdiction Types of personal jurisdiction: 1. in personam - court has power over a particular person - in personam applies if minimum contact is established. For non-residents of a state, a state court may still have jurisdiction if the person travels regularly to the state on business or has a post office box in the state. Each state has its own definition of what constitutes doing business in the state, as determined by common law. 2. in Rem - a court has power if a particular piece of property is in the state.

3. consent - when a contract specifies in which state any disputes are settled. The contract can specify a third state in which neither party does business. Just because a case is heard by a particular state court does not mean that that state's laws apply. The states whose laws are used can be specified in the contract. One state's court can hear a case under another state's laws. Lifecycle of a Lawsuit In the beginning phase of a lawsuit, there is a complaint, followed by the defendant's answer in which he or she tries to counter everything in the claim. The defendant then may file a counterclaim. Counterclaims are lawsuits within a lawsuit in which the defendant files a claim against the plaintiff. There then may be a preliminary motion, of which the outcome can be dismissal due to no legal claim based on reading the complaint, or a summary judgement in which a decision can be based on the facts of the case that are not in dispute. The middle phase of a lawsuit is the discovery phase, in which each side attempts to determine how strong their case is. The discovery phase consists of interrogatories, depositions, and admissions. By this point, most cases are settled. The end phase of a lawsuit is the trial, beginning with a pre-trial conference in which the parties attempt to settle in front of a judge without going to court. The trial then proceeds with the evidence and then a judgement and possibly a post-judgement. The post-judgement may be that a new trial is necessary, such as in cases of mistrial. The defendant usually has the right to one appeal within a certain period of time. An appeal is filed with the appellate court, there are briefs, oral arguments, and then a decision. The judgement is enforced by first obtaining an execution that freezes the defendant's assets. The defendant is served and the assets are levied. The defendant, however, may choose to file for bankruptcy protection, in which case all creditors are stopped, including court judgements. Remedies There are two types of remedies: legal and equitable. Legal remedies are moneybased and seek to financially compensate one for the damage that has occurred. Equitable remedies require a specific performance. Examples of equitable remedies are injunctions, restitution, and reformation. In cases where damages are difficult to quantify, equitable remedies may be more appropriate. Legal Case Study When attempting to understand how courts interpret the law, it is worthwhile to study past cases of similar legal issues. Past legal cases provide the opportunity to understand the law by studying well-argued positions from both sides. When studying a case, the following points should be identified:

1. 2. 3. 4.

Facts. One should identify which facts are important and which are not. Issue. One should isolate the specific legal issue relevant to the case. Court holding (ruling) Reasoning (why the court decided as it did).

Stages of the American judicial system: The first step is the complaint. The complaint is immediately recorded by the police and then referred to the prosecutors office. At this stage, known as the reading the indictment, a judge decides if the accused is to be remanded in custody or released on bail. If the accused pleads guilty an agreement is made between the defence and prosecution on a lighter sentence. If not, it is referred to the grand jury. The grand jury is made up of between 12 and 23 members of the public who listen to the arguments of the prosecutor and possibly those of the alleged victim and the accused. After deliberation, they decide whether the case should go forward. The official indictment is served by a supreme court and the trial is the last step. Dominique Strauss-Kahns charges of sexual assault are punished heavily in the U.S. His defence lawyer Benjamin Brafman who was part of the team that successfully defended pop singer Michael Jackson in 2005 has to clear his clients name. Strauss-Kahn is now being held in protective custody in an infamous jail. If guilty he could face up to 75 years in prison. If there is a trial and he is convicted of all charges he will receive the maximum sentence. At any moment he may change his plea and plead guilty. If this happens an agreement would be negotiated with the prosecution, which will avoid a trial.

An Overview of the Court System in the United States

The justice system in the United States is one of the most unique in the world. It consists of two separate levels of courts, state and federal, that can peacefully co-exist under the concept of federalism . The type of court that a case is tried in depends on the law, state or federal, that was allegedly violated. Most of the laws that govern our day-to-day living are state laws; violations of federal law include offenses involving federal government employees, crimes committed across state lines (for example, kidnapping or evading arrest), and fraud involving the national government (such as income tax or postal fraud). There are two types of trials: criminal and civil. In a criminal trial, the government is prosecuting an individual for an offense that threatens the security of individual citizens or society as a whole. Usually, criminal trials involve actions taken as a result of malicious intent, although cases of extreme negligence can also be considered criminal. Civil trials are disputes between two parties. In both instances, the person that charges are being brought against is the defendant; in criminal trials, the government ("the State of New Jersey", "the United States of America", depending on the law violated) is the prosecution - in civil trials, the party initiating the action is called the plaintiff. Although each state is free to arrange its own court system (within certain constituionally defined boundaries), most states justice systems have several features in common. The lowest level court in trials where state law is alleged to have been violated is the trial court (sometimes referred to as Superior Court or Supreme Court Trial Division). This is the only court with the power to determine the actual facts involved in a case (usually done by a jury). If either party involved in the case feels that the trial judge made an error in one of his rulings (either including or excluding a certain piece of evidence, making a bad call on an important objection), they can appeal, or bring the case to a Court of Appeals (or Supreme Court Appellate Divison in some states). Whereas trials are focused around the testimony of witnesses concerning their actions or observations, appeals feature two attorneys attempting to convince a panel of five judges that the law favors their side. The only issue in a Court of Appeals is whether or not correct trial procedure was followed; attorneys prepare written briefs citing historical precedents and rulings to persuade the panel of judges to rule in their favor. If unsatisfied with the appellate court's ruling, a party can ask for a Writ of Certiorari, which is essentially an appeal to the state Supreme Court. The Supreme Court Justices have the option of whether or not they wish to hear the case; four Justices must vote to hear it in order to have it brought before the Court. Out of the approximately 5,000 cases each year appealed

to the United States Supreme Court, it actually hears between 100-125 of them. The procedure at this level is similar to that at the appeals court; each attorney addresses the panel of Justices, which can interrupt at almost any time with questions.The ruling of the U.S. Supreme Court is final, though a future Court may overturn that decision (such as Plessy v. Ferguson). In cases on the federal level, the action again begins at federal trial courts. Cases can be appealed from there to the U.S. Circuit Court of Appeals, of which there are 13 throughout the country. Rulings of this court can again be appealed to the Supreme Court. As one might imagine, this entire process can be quite costly. One of the primary reasons that parties in a case might appeal their case to the Supreme Court is because they feel that the law which they violated was unconstitutional. The United States Supreme Court alone has the power to strike down Federal or state laws that it finds to be contrary to the United States Constitution. In that sense, the judicial system is the guardian of civil liberties in America.

Constitutional Rights Applying to Trials

Fourth Amendment - prohibits unwarranted searches and seizures by the government Fifth Amendment - protects against self incrimination Sixth Amendment - guarantees a speedy, fair trial before a jury of one's peers. Eighth Amendment - prohibits cruel and unusual punishment