Law of the United States

The law of the United States comprises many levels[1] of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress,[2] treaties ratified by the Senate,[3] regulations promulgated by the executive branch,[4] and case law originating from the federal judiciary.[5] The United States Code is the official compilation and codification of general and permanent federal statutory law.

Federal law and treaties, so long as they are in accordance with the Constitution, preempt conflicting state and territorial laws in the 50 U.S. states and in the territories.[6] However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual-sovereign[7] system of American federalism (actually tripartite[8] because of the presence of Indian reservations), states are the plenary sovereigns, each with their own constitution, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.[9] Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights.[10][11] Thus, most U.S. law (especially the actual "living law" of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.[12][13]

At both the federal and state levels, with the exception of the state of Louisiana, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the American Revolutionary War.[14][15] However, American law has diverged greatly from its English ancestor both in terms of substance and procedure,[16] and has incorporated a number of civil law innovations.

General overview

Parking regulations sign
Law affects every aspect of American life, including parking lots. Note the citations to statutes on the sign.

Sources of law

In the United States, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).[17]

Constitutionality

Where Congress enacts a statute that conflicts with the Constitution, state or federal courts may rule that law to be unconstitutional and declare it invalid.[18]

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, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court.[19] Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.[20][21]

Commonwealth countries are heirs to the common law legal tradition of English law.[22] Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder and general search warrants.[23]

As common law courts, U.S. courts have inherited the principle of stare decisis.[24] 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.[25]

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.[26] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[27] 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,[27] such as the heightened duty of care traditionally imposed upon common carriers.[28]

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.[29]

Despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law.[30] 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.

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.[31] 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.[32] The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.[33] 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 [do] not 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."[34]

Today, in the words of Stanford law professor Lawrence 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."[35] 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.[36]

Levels of law

Federal law

Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. The United States Code is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. 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, money, foreign relations (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail. Since the start of the 20th century, broad interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. 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, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like insurance, 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

Uscatitle11
The United States Code, the codification of federal statutory law

After the President signs a bill into law (or Congress enacts it over his veto), it is delivered to the Office of the Federal Register (OFR) of the National Archives and Records Administration (NARA) where it is assigned a law number, and prepared for publication as a slip law.[37] 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, 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, 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, and cumulative supplements are published annually.[38] 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

Code of Federal Regulations
The Code of Federal Regulations, the codification of federal administrative law

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.[39]

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 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.[40] 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.[41] 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.[42]

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 impliedly 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.[41]

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.[41] 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.[41] Furthermore, English judges in the eighteenth century subscribed to now-obsolete natural law 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.[41] 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.[41]

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.[41] The rule gradually developed, case-by-case, as an extension of the judiciary's public policy of effective judicial administration (that is, in order to efficiently exercise the judicial power).[41] The rule of 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.[43][44]

Here is a typical exposition of that public policy in a 2008 majority opinion signed by Associate Justice Stephen 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.[45]

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[46] and Commerce Clause decisions.[47] Originalists and political conservatives, such as Associate Justice Antonin Scalia have criticized this trend as anti-democratic.[48][49][50][51]

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 in turn was enacted as part of the Constitution or after). 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,[52] 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.[53] 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,[54] even if they believe that the relevant state law is irrational or just bad public policy.[55] And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.[56]

Although judicial interpretations of federal law from the federal district and intermediate appellate courts hold great persuasive weight, state courts are not bound to follow those interpretations.[57] 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.[58]

State law

Californiapenalcode
Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of California

The fifty American states are separate sovereigns,[59] with their own state constitutions, state governments, 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.[60] 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.[61]

Most cases are litigated in state courts and involve claims and defenses under state laws.[62][63] In a 2012 report, the National Center for State Courts' Court Statistics Project found that state trial courts received 103.5 million newly filed cases in 2010, which consisted of 56.3 million traffic cases, 20.4 million criminal cases, 19.0 million civil cases, 5.9 million domestic relations cases, and 1.9 million juvenile cases.[64] In 2010, state appellate courts received 272,795 new cases.[65] 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.[66]

State legal systems

Local law

States have delegated lawmaking powers to thousands of agencies, townships, counties, 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.[67]

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).[68] 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 followed by courts and parties to legal cases) and substantive law (the actual substance, or principles of law, which is what most people think of as law).[69]

Criminal law and procedure

Criminal law involves the prosecution 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, crimes 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), such as murder and rape, although penalties for these crimes may vary from state to state. Capital punishment 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 sentences as well as subsequent probation, large fines, and orders to pay restitution 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, infractions. These may result in fines and sometimes the loss of one's driver's license, but no jail time.

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.

The law of criminal procedure 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.[70] 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 is often used by suspects and convicts to challenge their detention, while the Civil Rights Act of 1871 and Bivens actions are used by suspects to recover tort damages for police brutality.

Civil procedure

The law of civil procedure governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law pleading was replaced by code pleading in 24 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 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.[71]

Generally, American civil procedure has several notable features, including extensive pretrial discovery, heavy reliance on live testimony obtained at deposition or elicited in front of a jury, 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, 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 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 or something else which undermines the entire contract.

Tort law

Restatement Second of Torts
The Restatement (Second) of Torts, a highly influential restatement of United States tort law

Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract.

Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and of course, partially overlaps with wrongs also punishable by criminal 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 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 for defective products, which originated with judicial glosses on the law of warranty. In 1963, Roger J. Traynor of the Supreme Court of California threw away legal fictions based on warranties and imposed strict liability for defective products as a matter of public policy in the landmark case of Greenman v. Yuba Power Products.[72] 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.[73] Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985[74] by Australia in July 1992[75] and by Japan in June 1994.[76]

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.[77]

See also

Lists

References

  1. ^ See Stephen Elias and Susan Levinkind, Legal Research: How to Find & Understand The Law, 14th ed. (Berkeley: Nolo, 2005), 22.
  2. ^ Ex parte Virginia, 100 U.S. 339 (1880).
  3. ^ Head Money Cases, 112 U.S. 580 (1884).
  4. ^ Skidmore v. Swift & Co., 323 U.S. 134 (1944).
  5. ^ Cooper v. Aaron, 358 U.S. 1 (1958).
  6. ^ William Burnham, Introduction to the Law and Legal System of the United States, 4th ed. (St. Paul, MN: Thomson West, 2006), 41.
  7. ^ Gregory v. Ashcroft, 501 U.S. 452 (1991).
  8. ^ Kowalski, Tonya (2009). "The Forgotten Sovereigns". Fla. St. U. L. Rev. 36 (4): 765–826.
  9. ^ United States v. Lopez, 514 U.S. 549 (1995).
  10. ^ Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
  11. ^ California v. Ramos, 463 U.S. 992 (1983).
  12. ^ Lawrence M. Friedman, A History of American Law, 3rd ed. (New York: Touchstone, 2005), 307 and 504–505.
  13. ^ Graham Hughes, "Common Law Systems," in Fundamentals of American Law, ed. Alan B. Morisson, 9–26 (New York: Oxford University Press, 1996), 33.
  14. ^ Hughes, 12.
  15. ^ Friedman, 4–5. Professor Friedman points out that English law itself was never completely uniform across England prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.
  16. ^ G. Edward White, Law in American History, Volume 1: From the Colonial Years Through the Civil War (Oxford: Oxford University Press, 2012), 48–51.
  17. ^ Paul Bergman and Sara J. Berman-Barrett, Represent Yourself in Court: How to Prepare & Try a Winning Case, 6th ed. (Berkeley: Nolo, 2008), 481.
  18. ^ See Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803).
  19. ^ James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991). In this case, the Supreme Court of Georgia had stubbornly refused to retroactively apply a 1984 U.S. Supreme Court decision which had declared a Hawaii statute to be unconstitutional as a violation of the Commerce Clause, even though it was clear that the Georgia statute had exactly the same flaw as the Hawaii statute. The high court reversed by a 6–3 majority.
  20. ^ See Casarotto v. Lombardi, 886 P.2d 931, 940 (Mont. 1994) (Trieweiler, J., specially concurring), vacated and remanded by 515 U.S. 1129 (1995), reaff'd and reinstated by 901 P.2d 596 (Mont. 1995), rev'd sub nom. Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996).
  21. ^ Cavazos v. Smith, 565 U.S. __, __ (2011) (per curiam).
  22. ^ Friedman, 67–69.
  23. ^ U.S. Const., Amend. IV.
  24. ^ John C. Dernbach and Cathleen S. Wharton, A Practical Guide to Legal Writing & Legal Method, 2nd ed. (Buffalo: William S. Hein Publishing, 1994), 34–36.
  25. ^ Antonin Scalia and Amy Gutmann, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1998), 3–13.
  26. ^ Miles O. Price & Harry Bitner, Effective Legal Research: A Practical Manual of Law Books and Their Use, 3rd ed. (Buffalo: William Hein & Co., 1969), 272.
  27. ^ a b Ibid.
  28. ^ See, e.g., Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41 (2005) (citing Lovett v. Hobbs, 89 Eng. Rep. 836 (1680)). The Gomez court relied on a line of cases originating with Lovett in order to hold that Disneyland was a common carrier.
  29. ^ See, e.g., Phillippe v. Shapell Industries, 43 Cal. 3d 1247, 241 Cal. Rptr. 22, 743 P.2d 1279 (1987) (citing original Statute of Frauds from England) and Meija v. Reed, 31 Cal.4th 657, 3 Cal. Rptr. 3d 390, 74 P.3d 166 (2003) (citing Statute of 13 Elizabeth).
  30. ^ Burnham, 43–44.
  31. ^ Friedman, 69.
  32. ^ Elizabeth Gaspar Brown, "Frontier Justice: Wayne County 1796–1836," in Essays in Nineteenth-Century American Legal History, ed. Wythe Holt, 676–703 (Westport, CT: Greenwood Press, 1976): 686. Between 1808 and 1828, the briefs filed in court cases in the Territory of Michigan changed from a complete reliance on English sources of law to an increasing reliance on citations to American sources.
  33. ^ Friedman, 475.
  34. ^ People v. Kelly, 40 Cal.4th 106, 51 Cal. Rptr. 3d 98, 146 P.3d 547 (2006).
  35. ^ Lawrence M. Friedman, American Law in the Twentieth Century (New Haven: Yale University Press, 2004), 575.
  36. ^ See Lawrence v. Texas, 538 U.S. 558 (2003), in which the majority cited a European court decision, Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), as indicative of the shared values of Western civilization.
  37. ^ "About Public and Private Laws". United States Government Printing Office.
  38. ^ "About the US Code". US Government Publishing Office.
  39. ^ Duffy, John; Herz, Michael (2005). A Guide to Judicial and Political Review of Federal Agencies. Chicago: American Bar Association. p. 54. ISBN 9781590314838.
  40. ^ Hughes, 13.
  41. ^ a b c d e f g h Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).
  42. ^ Michael J. Gerhardt, The Power of Precedent (New York: Oxford University Press, 2008), 59.
  43. ^ Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law (New York: Oxford University Press, 2008), 70–71.
  44. ^ Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595–602 (1987).
  45. ^ John R. Sand Gravel Co. v. United States, 552 U.S. 130, 139 (2008).
  46. ^ Cass R. Sunstein, Designing Democracy: What Constitutions Do (Oxford: Oxford University Press, 2001), 80.
  47. ^ Raoul Berger, "Judicial Manipulation of the Commerce Clause," 74 Tex. L. Rev. 695 (Mar. 1996).
  48. ^ National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012) (Thomas, J. dissenting)
  49. ^ Dickerson v. United States, 530 U.S. 428 (2000) (Scalia, J., dissenting).
  50. ^ United States v. Virginia, 518 U.S. 515 (1996) (Scalia, J., dissenting)
  51. ^ Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting)
  52. ^ Romero v. International Terminal Operating Co., 358 U.S. 354, 360–361 (1959).
  53. ^ Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487 (1941).
  54. ^ Hughes, 13–14.
  55. ^ Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564 (9th Cir. 1988). In this opinion, federal judge Alex Kozinski attacked a 1968 Supreme Court of California opinion at length before conceding that under Erie, he had no choice but to apply the state court's reasoning despite his strong dislike of it.
  56. ^ Stone Street Capital, LLC v. California State Lottery Com., 165 Cal. App. 4th 109, 123 fn. 11 (2008).
  57. ^ People v. Bradley, 1 Cal.3d 80, 86 (1969).
  58. ^ Elliot v. Albright, 209 Cal. App. 3d 1028, 1034 (1989).
  59. ^ U.S. Const., Amend. X.
  60. ^ See 28 U.S.C. § 1257.
  61. ^ Olson, Kent C. (1999). Legal Information: How to Find It, How to Use It. Phoenix: Greenwood Publishing Group. p. 6. ISBN 0897749634.
  62. ^ Sean O. Hogan, The Judicial Branch of State Government: People, Process, and Politics, (Santa Barbara: ABC-CLIO, 2006), xiv.
  63. ^ Alan B. Morisson, "Courts," in Fundamentals of American Law, ed. Alan B. Morisson, 57–60 (New York: Oxford University Press, 1996), 60.
  64. ^ Court Statistics Project, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads, (Williamsburg: National Center for State Courts, 2012), 3.
  65. ^ Examining the Work of State Courts, 40.
  66. ^ Office of Judges Programs, Statistics Division, Judicial Caseload Indicators (Washington: Administrative Office of the United States Courts, 2016).
  67. ^ See, e.g., Burton v. Municipal Court, 68 Cal. 2d 684 (1968) (invalidating Los Angeles city ordinance regulating motion picture theatres as an unconstitutional violation of freedom of speech as protected by the First Amendment to the United States Constitution).
  68. ^ Osborne M. Reynolds, Jr., Local Government Law, 3rd ed. (St. Paul: West, 2009), 33.
  69. ^ Beth Walston-Dunham, Introduction to Law, 6th ed. (Clifton Park, NY: Delmar, 2012), 97–103.
  70. ^ Urbonya, Kathryn R. (2006). "Fourth Amendment Federalism?: The Court's Vacillating Mistrust and Trust of State Search and Seizure Laws". In Ross, Mary Massaron; Voss, Edwin P. (eds.). Sword and Shield: A Practical Approach to Section 1983 Litigation. Chicago: American Bar Association. pp. 249–300. ISBN 9781590317662. Retrieved July 1, 2015.
  71. ^ For example, Section 437c of the California Code of Civil Procedure was amended by the state legislature several times in the 1990s to bring California's summary judgment standard in line with Rule 56 of the Federal Rules of Civil Procedure. See Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 849 (2001).
  72. ^ Mark A. Kinzie & Christine F. Hart, Product Liability Litigation (Clifton Park, NY: Thomson Delmar Learning, 2002), 100–101. See also Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963).
  73. ^ Kinzie & Hart, 101.
  74. ^ Norbert Reich, Understanding EU Law: Objectives, Principles and Methods of Community Law (Antwerp: Intersentia, 2005), 337.
  75. ^ Ellen E. Beerworth, "Australia," 51–74, in International Product Liability, vol. 1, ed. Christian Campbell (Salzburg: Yorkhill Law Publishing, 2006), 52.
  76. ^ Patricia L. Maclachlan, Consumer Politics in Postwar Japan (New York: Columbia University Press, 2002), 226.
  77. ^ "ALI Restatement of the Law Third, Torts: Products Liability". Ali.org. Archived from the original on May 31, 2013. Retrieved September 23, 2013.

Further reading

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
  • Horwitz, Morton J. The transformation of American law: 1780–1860 (1977)
  • Hovenkamp, Herbert The Opening of American Law: Neoclassical Legal Thought, 1870–1970 (2015)
  • Horwitz, Morton J. The transformation of American law, 1870–1960: the crisis of legal orthodoxy (1994)
  • 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
  • Rabban, David M. (2003). "The Historiography of Late Nineteenth-Century American Legal History". Theoretical Inquiries in Law. 4 (2): Article 5. doi:10.2202/1565-3404.1075.
  • Schwartz, Bernard. The Law in America. (Evolution of American legal institutions since 1790). (1974).

Colonial

  • Gerber, Scott D. (2011). "Bringing Ideas Back In—A Brief Historiography of American Colonial Law". American Journal of Legal History. 51 (2): 359–374. SSRN 1815230.
  • Hoffer, Peter (1998). Law and People in Colonial America (Rev. ed.). Baltimore: Johns Hopkins University Press. ISBN 0-8018-5822-4.

Lawyers

  • Abel, Richard L. American Lawyers (1991)
  • Chroust, Anton-Hermann. The Rise of the legal profession in America (2 vol 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

Attorney–client privilege

In the law of the United States, attorney–client privilege or lawyer–client privilege is a "client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."The attorney–client privilege is one of the oldest recognized privileges for confidential communications. The United States Supreme Court has stated that by assuring confidentiality, the privilege encourages clients to make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation.

Bankruptcy in the United States

In the United States, bankruptcy is governed by federal law, commonly referred to as the "Bankruptcy Code" ("Code"). The United States Constitution (Article 1, Section 8, Clause 4) authorizes Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States." Congress has exercised this authority several times since 1801, including through adoption of the Bankruptcy Reform Act of 1978, as amended, codified in Title 11 of the United States Code and the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).

Some laws relevant to bankruptcy are found in other parts of the United States Code. For example, bankruptcy crimes are found in Title 18 of the United States Code (Crimes). Tax implications of bankruptcy are found in Title 26 of the United States Code (Internal Revenue Code), and the creation and jurisdiction of bankruptcy courts are found in Title 28 of the United States Code (Judiciary and Judicial procedure).

Bankruptcy cases are filed in United States Bankruptcy Court (units of the United States District Courts), and federal law governs procedure in bankruptcy cases. However, state laws are often applied to determine how bankruptcy affects the property rights of debtors. For example, law governing the validity of liens or rules protecting certain property from creditors (known as exemptions), may derive from state law or federal law. Because state law plays a major role in many bankruptcy cases, it is often unwise to generalize some bankruptcy issues across state lines.

Civil law (common law)

Civil law is a branch of the law. In common law legal systems such as England and Wales, the law of Pakistan and the law of the United States, the term refers to non-criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law, as is law of property (other than property-related crimes, such as theft or vandalism). Civil law may, like criminal law, be divided into substantive law and procedural law. The rights and duties of persons (natural persons and legal persons) amongst themselves is the primary concern of civil law. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. However, exemplary damages or punitive damages may be awarded in civil proceedings. It was also formerly possible for common informers to sue for a penalty in civil proceedings.Because some courts have both civil and criminal jurisdiction, civil proceedings cannot be defined as those taken in civil courts. In the United States, the expression "civil courts" is used as a shorthand for "trial courts in civil cases".In England, the burden of proof in civil proceedings is, in general—with a number of exceptions such as committal proceedings for civil contempt—proof on a balance of probabilities. In civil cases in the law of the Maldives, the burden of proof requires the plaintiff to convince the court of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action in order to recover.

Copyright law of the United States

The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any music composed before January 1, 1924, is generally considered public domain.

United States copyright law was last generally revised by the Copyright Act of 1976, codified in Title 17 of the United States Code. The United States Constitution explicitly grants Congress the power to create copyright law under Article 1, Section 8, Clause 8, known as the Copyright Clause. Under the Copyright Clause, Congress has the power, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."The United States Copyright Office handles copyright registration, recording of copyright transfers, and other administrative aspects of copyright law.

Criminal law of the United States

Responsibility for criminal law and criminal justice in the United States is shared between the states and the federal government.

Energy law

Energy laws govern the use and taxation of energy, both renewable and non-renewable. These laws are the primary authorities (such as caselaw, statutes, rules, regulations and edicts) related to energy. In contrast, energy policy refers to the policy and politics of energy.

Energy law includes the legal provision for oil, gasoline, and "extraction taxes." The practice of energy law includes contracts for siting, extraction, licenses for the acquisition and ownership rights in oil and gas both under the soil before discovery and after its capture, and adjudication regarding those rights.

Exigent circumstance

An exigent circumstance, in the criminal procedure law of the United States, allows law enforcement, under certain circumstances, to enter a structure without a search warrant or, if they have a "knock and announce" warrant, without knocking and waiting for refusal. It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect's escape is imminent. Once entry is obtained, the plain view doctrine applies, allowing the seizure of any evidence or contraband discovered in the course of actions consequent upon the exigent circumstances.

Foreign policy of the United States

The foreign policy of the United States is its interactions with foreign nations and how it sets standards of interaction for its organizations, corporations and system citizens of the United States.

The officially stated goals of the foreign policy of the United States, including all the Bureaus and Offices in the United States Department of State, as mentioned in the Foreign Policy Agenda of the Department of State, are "to build and sustain a more democratic, secure, and prosperous world for the benefit of the American people and the international community." In addition, the United States House Committee on Foreign Affairs states as some of its jurisdictional goals: "export controls, including nonproliferation of nuclear technology and nuclear hardware; measures to foster commercial interaction with foreign nations and to safeguard American business abroad; international commodity agreements; international education; and protection of American citizens abroad and expatriation." U.S. foreign policy and foreign aid have been the subject of much debate, praise and criticism, both domestically and abroad.

Habeas Corpus Act 1867

The Habeas Corpus Act of 1867 (sess. ii, chap. 28, 14 Stat. 385) is an act of Congress that significantly expanded the jurisdiction of federal courts to issue writs of habeas corpus. Passed February 5, 1867, the Act amended the Judiciary Act of 1789 to grant the courts the power to issue writs of habeas corpus "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or any treaty or law of the United States." Prior to the Act's passage, prisoners in the custody of one of the states who wished to challenge the legality of their detention could petition for a writ of habeas corpus only in state courts; the federal court system was barred from issuing writs of habeas corpus in their cases. The Act also permitted the court "to go beyond the return" and question the truth of the jailer's stated justification for detaining the petitioning prisoner, whereas prior to the Act courts were technically bound to accept the jailer's word that the prisoner was actually being held for the reason stated. The Act largely restored habeas corpus following its 1863 suspension by Congress, ensuring that anyone arrested after its passage could challenge their detention in the federal courts, but denied habeas relief to anyone who was already in military custody for any military offense or for having aided the Confederacy.When the Habeas Corpus Act of 1867 is spoken of, it is usually this act that is meant. Another act dealing with habeas corpus was passed the same day and appears on the same page of the United States Statutes at Large, being the twenty-seventh rather than the twenty-eighth chapter. It amended the Habeas Corpus Suspension Act of 1863, which permitted (among other things) government officials charged with abusing their powers under the suspension of habeas corpus to have their cases heard at the federal rather than state level. The 1867 Act ensured that the federal courts could effectively hear the cases transferred to them by issuing a writ for habeas corpus cum causa.

Immigration Act of 1903

The Immigration Act of 1903, also called the Anarchist Exclusion Act, was a law of the United States regulating immigration. It codified previous immigration law, and added four inadmissible classes: anarchists, people with epilepsy, beggars, and importers of prostitutes. It had little impact and its provisions related to anarchists were expanded in the Immigration Act of 1918.

Market share liability

Market share liability is a legal doctrine that allows a plaintiff to establish a prima facie case against a group of product manufacturers for an injury caused by a product, even when the plaintiff does not know from which defendant the product originated. The doctrine is unique to the law of the United States and apportions liability among the manufacturers according to their share of the market for the product giving rise to the plaintiff's injury.

Mere evidence rule

In the law of the United States, the mere evidence rule was a historical doctrine that defined the scope of the Fourth Amendment to the United States Constitution.

Privacy laws of the United States

The privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain. Public figures have less privacy, and this is an evolving area of law as it relates to the media.The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.Attempts to improve consumer privacy protections in the US in the wake of the May–July 2017 Equifax data breach, which affected 145.5 million US consumers, failed to pass in Congress.

Remand (court procedure)

The remand court procedure is used by higher courts to send cases back to lower courts for further action.

In the law of the United States, appellate courts remand cases to district courts for actions such as a new trial. Federal appellate courts, including the Supreme Court, have the power to "remand [a] cause and ... require such further proceedings to be had as may be just under the circumstances." This includes the power to make summary "grant, vacate and remand" or GVR orders.Appellate courts remand cases whose outcome they are unable to finally determine. For example, cases may be remanded when the appellate court decides that the trial judge committed a procedural error, excluded admissible evidence, or ruled improperly on a motion.

In common law jurisdictions, remand refers to the adjournment (continuance) of criminal proceedings, when the accused is either remanded in custody or on bail. Appellate courts are said to remit matters to lower courts for further consideration.

Taxation in the United States

The United States of America has separate federal, state, and local governments with taxes imposed at each of these levels. Taxes are levied on income, payroll, property, sales, capital gains, dividends, imports, estates and gifts, as well as various fees. In 2010, taxes collected by federal, state, and municipal governments amounted to 24.8% of GDP. In the OECD, only Chile and Mexico are taxed less as a share of their GDP.However, taxes fall much more heavily on labor income than on capital income. Divergent taxes and subsidies for different forms of income and spending can also constitute a form of indirect taxation of some activities over others. For example, individual spending on higher education can be said to be "taxed" at a high rate, compared to other forms of personal expenditure which are formally recognized as investments.

Taxes are imposed on net income of individuals and corporations by the federal, most state, and some local governments. Citizens and residents are taxed on worldwide income and allowed a credit for foreign taxes. Income subject to tax is determined under tax accounting rules, not financial accounting principles, and includes almost all income from whatever source. Most business expenses reduce taxable income, though limits apply to a few expenses. Individuals are permitted to reduce taxable income by personal allowances and certain non-business expenses, including home mortgage interest, state and local taxes, charitable contributions, and medical and certain other expenses incurred above certain percentages of income. State rules for determining taxable income often differ from federal rules. Federal marginal tax rates vary from 10% to 39.6% of taxable income. State and local tax rates vary widely by jurisdiction, from 0% to 13.30% of income, and many are graduated. State taxes are generally treated as a deductible expense for federal tax computation, although the 2017 tax law imposed a $10,000 limit on the state and local tax ("SALT") deduction, which raised the effective tax rate on medium and high earners in high tax states. Prior to the SALT deduction limit, the average deduction exceeded $10,000 in most of the Midwest, and exceeded $11,000 in most of the Northeastern United States, as well as California and Oregon. The states impacted the most by the limit were the tri-state area (NY, NJ, and CT) and California; the average SALT deduction in those states was greater than $17,000 in 2014.The United States is one of two countries in the world that taxes its non-resident citizens on worldwide income, in the same manner and rates as residents; the other is Eritrea. The U.S. Supreme Court upheld the constitutionality of imposition of such a tax in the case of Cook v. Tait.Payroll taxes are imposed by the federal and all state governments. These include Social Security and Medicare taxes imposed on both employers and employees, at a combined rate of 15.3% (13.3% for 2011 and 2012). Social Security tax applies only to the first $106,800 of wages in 2009 through 2011. However, benefits are only accrued on the first $106,800 of wages. Employers must withhold income taxes on wages. An unemployment tax and certain other levies apply to employers. Payroll taxes have dramatically increased as a share of federal revenue since the 1950s, while corporate income taxes have fallen as a share of revenue. (Corporate profits have not fallen as a share of GDP).Property taxes are imposed by most local governments and many special purpose authorities based on the fair market value of property. School and other authorities are often separately governed, and impose separate taxes. Property tax is generally imposed only on realty, though some jurisdictions tax some forms of business property. Property tax rules and rates vary widely with annual median rates ranging from 0.2% to 1.9% of a property's value depending on the state.Sales taxes are imposed by most states and some localities on the price at retail sale of many goods and some services. Sales tax rates vary widely among jurisdictions, from 0% to 16%, and may vary within a jurisdiction based on the particular goods or services taxed. Sales tax is collected by the seller at the time of sale, or remitted as use tax by buyers of taxable items who did not pay sales tax.

The United States imposes tariffs or customs duties on the import of many types of goods from many jurisdictions. These tariffs or duties must be paid before the goods can be legally imported. Rates of duty vary from 0% to more than 20%, based on the particular goods and country of origin.

Estate and gift taxes are imposed by the federal and some state governments on the transfer of property inheritance, by will, or by lifetime donation. Similar to federal income taxes, federal estate and gift taxes are imposed on worldwide property of citizens and residents and allow a credit for foreign taxes.

United States administrative law

United States federal administrative law encompasses statutes, common law, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define the extent of powers and responsibilities held by administrative agencies of the United States Government (both executive branch agencies and independent agencies). The executive, legislative, and judicial branches of the U.S. federal government cannot always directly perform their constitutional responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.

Justice Breyer defines administrative law in four parts. Namely, the legal rules and principles that: (1) define the authority and structure of administrative agencies; (2) specify the procedural formalities employed by agencies; (3) determine the validity of agency decisions; and (4) define the role of reviewing courts and other governmental entities in relation to administrative agencies.U.S. federal agencies have the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power.

United States nationality law

The United States nationality law refers to the uniform rule of naturalization of the United States set out in the Immigration and Nationality Act of 1952, enacted under the power of Article I, section 8, clause 4 of the United States Constitution (also referred to as the Nationality Clause), which grants the Congress the power to "establish a uniform Rule of Naturalization..." The 1952 Act sets forth the legal requirements for the acquisition of, and divestiture from, American nationality. The requirements have become more explicit since the ratification of the Fourteenth Amendment to the Constitution, with the most recent changes to the law having been made by Congress in 2001.

United States patent law

Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others from using a new technology. Specifically, it is the right to exclude others from making, using, selling, offering for sale, importing, inducing others to infringe, and/or offering a product specially adapted for practice of the patent.United States patent law is codified in Title 35 of the United States Code, and authorized by the U.S. Constitution, in Article One, section 8, clause 8, which states:

The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Patent law is designed to encourage inventors to disclose their new technology to the world by offering the incentive of a limited-time monopoly on the technology. For U.S. utility patents, this limited-time term of patent is 20 years from the earliest patent application filing date (but this term can be extended via patent term adjustment). After the patent term expires, the new technology enters the public domain and is free for anyone to use.

United States trademark law

A trademark is a word, phrase, or logo that identifies the source of goods or services. Trademark law protects a business' commercial identity or brand by discouraging other businesses from adopting a name or logo that is "confusingly similar" to an existing trademark. The goal is to allow consumers to easily identify the producers of goods and services and avoid confusion.United States trademark law is mainly governed by the Lanham Act. Common law trademark rights are acquired automatically when a business uses a name or logo in commerce, and are enforceable in state courts. Marks registered with the U.S. Patent and Trademark Office are given a higher degree of protection in federal courts than unregistered marks—both registered and unregistered trademarks are granted some degree of federal protection under the Lanham Act 43(a).

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