Sources of American Law
• Common law – “judge-made law” that originated in
England and was derived from judges applying
prevailing customs to settle disputes in royal courts
– case law – an earlier court ruling (precedent) applied in
subsequent similar cases
– flowing from principle of stare decisis, or standing on
decided cases, e.g., applying legal precedents
– U.S. constitutional law has a huge “common law”
component as the S.Ct. has interpreted/applied the
language of the Constitution through cases before it;
hence, constitutional law concerns itself with the current
and evolving interpretation of the language of the
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Constitution.
Sources of American Law, cont.
• Constitutional Law – recognized as superior to other
sources of law [Art. VI]
– United States Constitution
– State Constitutions
• Statutory Law – law originating from authoritative lawmaking source, usually, a legislature
• Regulatory Law – rules created by the regulatory
agencies of the bureaucracy
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Types of law based on subject matter of
the law
• Administrative law – law governing regulatory
agencies and the bureaucracy
• Civil law – defines individuals’ rights in relation to
other individuals, private organizations and
government
• Criminal law – defines crimes against society and the
public order
Types of law based on subject matter of the
law, cont.
• Private law – provides benefits for or imposes
duties and obligations on individuals and nongovernmental organizations
• Public law – imposes duties and obligations on the
government
Development of U.S. Constitution
• In theory, the British Empire was a unitary system with all
power concentrated at the center [King in Parliament]
• In practice, the Empire operated as a federal system with
extensive authority delegated to the individual colonial
governments
• In reaction to the unitary claims of British rule, the first
constitution adopted by an independent U.S. was a
confederation, with an extremely weak central government
and sovereignty vested in the individual states
• Notice the one-branch structure of
the Articles government; there was
no Executive nor Judicial branch;
Congress was unicameral and each
state was equally represented and
each had an absolute veto over any
amendment to the constitution.
The list of powers Congress lacked is much more
impressive than those it had.
Move for a New Constitution
• By the mid-1780s it was clear to many that the
confederal arrangement created by the Articles was
too weak to provide the unity a large and diverse
country needed
• Feb., 1789 - Congress issued call for states to send
delegates to Philadelphia in May for the “sole and
express purpose of revising the Articles of
Confederation.”
A Constitutional Coup in 1789?
• Delegates selected by their respective states were
authorized merely to propose amendments to the
Articles.
• 55 delegates from 12 states eventually arrived in
Philadelphia.
• Rhode Island had refused to select or send any delegates.
• What was the implication of Rhode Island’s action?
• What were the alternatives for the delegates who had
arrived in Philadelphia?
Dispersion of Power in the U.S. Constitution
• Given the circumstances under which the new constitution was adopted AND
given the colonial experience of the Framers, it is no surprise that the new
constitution was all about controlling and dispersing power to prevent its
concentration and/or abuse:
– Rule of law – the fundamental philosophy that the government itself and all
officials exercising power/authority in its name are subject to the law; no
one is “above the law.” Repudiation of the prevailing concept of “divine
right” which put the sovereign above the law in the sense that “He gives law
to all and receives it from none.”
– Limited government – government can only exercise those powers
delegated to it or which can be reasonably inferred from those delegated
powers (Art. 1, Sec. 8, Cl. 18 – the so-called “elastic clause” or “necessary
and proper” clause); repudiated the prevailing notions of “absolutism.”
– Federalism – sovereign powers are divided between the states and the
national government and represent a compromise position between the
unitary and confederal forms previously experienced
– Separation of Powers – national government’s powers are divided among
“co-equal”/independent branches with a built-in system of “checks and
balances”
• legislative branch – is granted power to make laws
• judicial branch – is granted power to resolve disputes under the law
2-5• executive branch – is granted power to administer/enforce laws
Illustration of concepts of limited
government and federalism
Operation of concept of “checks and
balances
Selected Features of the Operations of
the U.S. Judicial System
Basic Judicial Requirements:
Jurisdiction+Standing=“Justiciability”
• Jurisdiction – a U.S. court must have either
“original” or “appellate” jurisdiction over a case
– jurisdiction is established in a constitution or statute
– jurisdiction may be “general” or “specialized”
– “federal question” – a claim arising under the Const. or
laws of the U.S.
• “Standing to sue – plaintiff must meet certain
“qualifications” to bring a matter before a court
• See feature on website for fuller development of
these concepts
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Supreme Court’s Jurisdiction
–
“Judicial Power” defined in Art. III, Sec. 2
•
•
–
“Original jurisdiction” Art. III, Sec. 2, Cl. 1
•
•
–
strictly limited to two types of parties
very few cases annually arise under this provision
“Appellate jurisdiction” Art. III, Sec. 2, Cl. 2
•
•
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Limited to “cases” and “controversies,” i.e., federal courts
will hear only real legal disputes between actual
adversarial parties
No “advisory opinions,” although many state courts do
this
•
subject to Congressional regulation
granted at Court’s discretion through “writ of
certiorari”
the “Rule of 4” – 4 justices must vote to “take a case”
Other Jurisdictional Issues
–
–
–
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“General jurisdiction” – power to hear any disputes
arising under the Constitution, federal statutes,
treaties, or state laws/constitutions which involve a
“federal question,” i.e., one which impacts or
implicates a right claimed under U.S. law
“Specialized jurisdiction” – some federal courts can
hear only certain types of cases based on their
content, e.g., the Tax Court, Custom Court, and
Court of International Trade [see diagram on p. 17]
Geographical jurisdiction - District Courts and
Courts of Appeals can only hear cases arising within
their geographically-defined area, e.g., the Eastern
District of Arkansas or the 8th Circuit Court of
Appeals [see map on p. 18]
Take It All the Way to the Supreme Court?
• c. 11,000,000 cases originated in all courts (U.S. and
states) each year
• c. 50,000 appealed to U.S. Courts of Appeal
– .0045 (>1/2 of 1%)of all cases
• c. 7,500 appealed to U.S. Supreme Court
– .15 (15%) of all cases appealed to U.S. Courts
– .00068 (1/4 of 1% of all cases filed)
• c. 70-90 accepted for “full review” (only 60 in 2003-04,
37 in 2006)
– .012 (1%) of all cases appealed to Supreme Court
– .0018 (2/10ths of 1%) of all cases appealed to Courts of
Appeal
– .0000081 (of all cases initiated annually)
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Which Cases Reach the Supreme Court?
The Court’s “Rule 10”
• must be real case, not a
hypothetical (issue of War
Powers Act, i.e., since no
president had violated it,
the Court has not ruled on
its constitutionality)
• when two Courts of Appeal
disagree
• when a lower court’s ruling
conflicts with an existing
Supreme Court ruling
• when a case has broad
significance
• when a state court has
decided a substantial
federal question
• when the highest state court
holds a federal law invalid,
or upholds a state law that
has been challenged as
violating a federal law
• when a federal court holds
an act of Congress
unconstitutional
• when the Solicitor General
is pressuring the Court to
hear a case
Options for Handling Appeals
• Deny Appeal – upholds last lower court
• Summary Judgment – disposes of case w/o full review
• Full Review
–
–
–
–
Submission of briefs, including amicus curiae briefs
Oral argument (strict time limits imposed; Q and A format)
Collective decision
Formal (usually quite lengthy) opinion issued by Court and
individual judges
• Affirm – upholds the last lower court (end of the line)
• Reverse – overturns last lower court
• Remand
– usually issued in conjunction with “reverse”
– sends case back to the last lower for final disposition, but with
new guidelines to be followed
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Types of Court Rulings
•
•
Unanimous ruling
Majority ruling
–
–
•
•
Concurring opinions (agree with ruling, but not reasoning)
Dissenting opinions (disagrees with the ruling)
Plurality ruling (when less than a majority of judges agree
on a ruling; only happens when less than full Court
participates, e.g. a 4-3 ruling; lacks power to establish a
precedent)
Deadlocked ruling - 4-4 or 3-3; has effect of upholding
the ruling of the last previous court to hear case
How Judges Decide: Judicial Philosophy
• judicial activism – (the liberal position)
–
–
–
–
not “overly bound’ by the actual language of the Constitution
not bound by the meanings of words in 18th century
not bound by precedent (unless it favors the desired end)
views Constitution as an “evolving instrument” (by judicial
interpretation) for achieving desirable social policy
– views courts as primary players in “righting wrongs” the
democratic branches won’t address
• extensive use judicial review – the power of the courts to declare the
acts of governmental officials unconstitutional (example of
Constitutional common law)
– c. 150 U.S. laws have been overturned [c. 200 S.C. opinions have been
overturned by later a Court ruling]
– c. 1,200 state laws have been overturned
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How Judges Decide: Judicial Philosophy
• judicial restraint – (the conservative position)
– puts greater emphasis on the actual language of the
Constitution
– interprets words as they were used in the 18th century
– asks what was the “intention” of the Framers
– puts greater emphasis on precedent (unless it is recent
precedent which has reversed older precedent)
– defers to the democratic branches to establish social
policy
– rarely uses judicial review except to redress “flagrant”
abuses of legislative or executive power
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Qualifications for Judges
• Formal/Constitutional qualifications/requirements:
– NONE
– Over ½ of all Supreme Court justices had NO prior
judicial experience at the time of their appointment
• Informal qualifications/requirements
– training in the law
– President’s political party
– race, gender, religion (to maintain “balance” and to
create impression of “symbolic” representation
– prior judicial experience [as best gauge for
“philosophical compatibility”]
Judicial philosophy is the most important qualification!
Does the Judiciary Threaten the Democratic
Character of the American System?
Checks on the Judiciary
• Executive Checks
– appointments (President’s most lasting legacy)
• president can alter the course of Court rulings by his
appointments
• opportunities to appoint are a result of circumstances beyond
his control (resignation or death of a justice)
– implementation/enforcement of Court rulings
• Court does not have ability to enforce its own rulings
• dependent on executive branch to enforce orders if there is
resistance or defiance
• in extreme case, president could refuse to enforce a Court
decision or order [Andrew Jackson did so in 1830s]
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Does the Judiciary Threaten the Democratic
Character of the American System?
• Executive Checks
• Legislative Checks
– appropriation of funds to carry out rulings
• If Court ruling requires action which will require funding, Congress
could refuse to provide the money
– constitutional amendments to overturn a Court ruling [has
happened only 3 times, but it is the only way a ruling based
on an interpretation of the Constitution can be overruled by
another branch of government]
– amending statutes to overturn Court’s rulings
• If ruling based on the Court’s interpretation of a statute, the
Congress can re-enact the law leaving out the provisions the Court
found objectionable or clarifying the meaning of vague language
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Checks on the Judiciary (cont.)
• Executive Checks
• Legislative Checks
• Public Opinion
– Widespread ignoring/resistance to decision (long defiance of
school prayer/Bible reading rulings)
– pressure executive for non-enforcement or half-hearted
enforcement
– influence judicial opinions (continued litigations trying to
exploit every facet of the ruling)
• Judicial Self-Restraint
– tradition of restraint (various Courts and justices
– narrow focus of judicial questions as opposed to broad
questions of social policy
– stare decisis itself puts a check on judicial assertiveness and
innovations
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