Chapter 5 The American Legal System
Chapter Overview
11. Introduction
12. The Framework of American Law
13. Constitutional Law
14. Statutory Law
15. Administrative Law
16. Case Law and the Common Law Tradition
17. National and International Law
18. Basic Judicial Requirements
19. State Court Systems
10. The Federal Court System
11. Alternative Dispute Resolution
Chapter Objectives
After completing this chapter, you will know:

The meaning and relative importance in the American legal system of
constitutional law, statutory law, administrative law, and case law.

What the common law tradition is and how it evolved.

The requirements that must be met before a lawsuit can be brought in a
particular court by a particular party.

The types of courts that make up a typical state court system and the different
functions of trial courts and appellate courts.

The organization of the federal court system and the relationship between state
and federal jurisdiction.

The various ways in which disputes can be resolved outside the court system.
Chapter Outline
I.
INTRODUCTION
The American legal system is based on English common law.
II.
THE FRAMEWORK OF AMERICAN LAW
A. What Is the Law?
1. Law has been defined variously over the ages.
2. Basically, law consists of a body of rules of conduct with legal force and
effect, prescribed by the controlling authority of a society.
B. Primary Sources of American Law
1. The U.S. Constitution and the constitutions of the various states.
2. Statutory law—including laws passed by Congress, state legislatures, and
local governing bodies.
3. Regulations created by administrative agencies, such as the U.S. Food and
Drug Administration.
4. Case law and common law doctrines.
5. Secondary sources of law are books and articles that summarize and clarify
the primary sources of law (such as legal encyclopedias, treatises, and
articles in law reviews).
III.
CONSITUTIONAL LAW
A. The Federal Constitution
1. The U.S. Constitution, as amended, is “the supreme Law of the Land.” This
principle is established by the supremacy clause (Article VI) of the U.S.
Constitution.
2. A law in violation of the U.S. Constitution will be declared unconstitutional
and will not be enforced.
3. The U.S. Constitution sets forth the powers of the three branches of the
federal government and the relationship between the three branches.
4. Constitutional Rights
a. The first ten amendments to the U.S. Constitution are commonly known
as the Bill of Rights.
b. The Bill of Rights limited only the powers of the national government.
The Supreme Court has applied these limitations to the states by using
the Fourteenth Amendment.
5. The Courts and Constitutional Law
a. The broad principles enunciated in the Constitution are given form and
substance by the courts.
b. Courts Balance the Right to Free Speech—Even though the First
Amendment guarantees the right to free speech, the Supreme Court has
made it clear that certain types of speech will not be protected.
c. Free Speech and the Internet—The Internet has raised new problems
for the courts in determining how to define and apply the protections of
free speech.
B. State Constitutions
1. Each state also has a constitution that sets forth the general organization,
powers, and limits of the state government.
2. A state constitution is supreme within the state’s respective borders, so long
as it does not conflict with the U.S. Constitution.
C. Constitutional Law and the Paralegal
1. Paralegals often assist attorneys in handling cases that involve
constitutional rights or provisions.
2. A knowledge of constitutional law is beneficial, because the authority and
underlying rationale for the substantive and procedural laws governing many
areas of law are found in the Constitution.
V.
STATUTORY LAW—Statutes are the laws enacted by legislative bodies at any
level of government.
A. Federal Statutes
1. Federal statutes are enacted by the U.S. Congress and apply to every state.
2. Any federal statute that violates the U.S. Constitution will be held
unconstitutional.
3. The federal government and state government share power. However
certain powers can only be exercised by the federal government.
4. The powers given to the federal government are divided amongst the three
branches of government:
a. The legislative branch, Congress, makes the laws.
b. The executive branch enforces the laws.
c. Judicial branch interprets the laws.
Several Sources
Constitutional, statutory, and case law―these are your tools. The United
States Constitution is the overriding document. It is the supreme law of the
land. Each state has its own constitution. State and federal statutes are
interpreted by judges through case law. These sources play in each practice
area. For example: constitutional law governs searches and seizures in a
criminal matter; statutes provide the framework for real estate transactions;
and case law interprets and applies both constitutional and statutory law.
There is much to learn. Chapter 16, “Legal Research, “will give you an
overview of these sources of laws.
B. State Statutes and Local Ordinances
1. State statutes are laws enacted by state legislatures.
2. Any state law that is found to conflict with the U.S. Constitution, or with that
state’s constitution, will be deemed unconstitutional.
3. State Lawmaking Process
a. All states except Nebraska have two chamber legislatures. Nebraska
has a one-chamber legislature.
b. The process used by the states is similar to the one used by the U.S.
Congress.
4. Local Ordinances
a. An ordinance is an order, rule, or law passed by city or county
government.
b. Ordinances may not violate the U.S. Constitution, the state constitution,
or federal or state law.
C. Uniform Laws
1. Uniform (“model”) statutes are drafted for adoption by the states.
2. A state can adopt or reject all or part of a uniform law, as the state
legislature wishes.
3. An example of a uniform law is the Uniform Commercial Code (UCC).
D. Statutory Law and the Paralegal
1. A paralegal may often assist in cases involving violations of statutory law.
2. A paralegal working on cases governed by statutory law needs to know how
to both locate and interpret the relevant state or federal statutes.
VI. ADMINISTRATIVE LAW
A. Agency Creation
1.
Administrative agencies are created by legislatures to administer and
enforce legislation and to issue rules to implement the goals of specific
legislation.
2.
Examples of federal administrative agencies are:
a. Environmental Protection Agency
b. Food and Drug Administration
c. Securities and Exchange Commission
B. Rulemaking
1. Rulemaking, creating or modifying rules or regulations, is one of the major
functions of an administrative agency.
2. Steps of rulemaking
a. The agency gives public notice of the proposed rulemaking in the
Federal Register.
b. The agency must allow interested persons to make written comments
about the proposed rule.
c. Taking the comments into account, the final rule is written and published
in the Federal Register.
C. Investigation and Enforcement
1. Agencies have the power to investigate and prosecute violations of rules.
2. After investigation, the agency may take administrative action against the
person or business. Most actions are resolved through negotiated
settlements. If there is no settlement, the case may go to adjudication.
D. Adjudication
1. A trial-like hearing takes place before an administrative law judge (ALJ).
2. Procedures vary from agency to agency.
3. The ALJ issues a decision on the case.
4. The decision may be appealed to the board or commission that governs the
agency.
5. Further appeals are to a federal court.
E. Administrative Law and the Paralegal
1. Paralegals frequently deal with administrative agencies.
2. Paralegals may also work for administrative agencies, drafting new rules,
mediating disputes, and performing numerous other tasks.
VII. CASE LAW AND THE COMMON LAW TRADITION
A. The Doctrine of Stare Decisis
1. Stare decisis means “to stand by things decided.”
2. Under this doctrine, judges are expected to abide by the law as established
by previous court decisions.
3. The practice of deciding new cases with reference to former decisions, or
precedents, is a cornerstone of the American judicial system.
4. Departures from Precedent—Occasionally a court will depart from
precedent if the precedent is based on a clearly erroneous application of the
law or if the political and cultural environment has changed so significantly
that the precedent is no longer relevant.
5. Cases of First Impression—When there is no precedent on which to base a
decision, or when there are conflicting precedents, courts may consider a
Consulting Cases
Case law represents judicial opinions. Judicial opinions represent
opinions written by judges on a particular case. Understanding
case law can be difficult. It requires analytical skills. Such skills are
acquired over time and after reading many cases. But do not
despair. When you find that perfect case, it will be worth it.
number of factors such as fairness, social values, and public policy.
B. Remedies and Equitable Remedies
1. Remedy is the means given to a party to enforce a right or to compensate
for a violation of a right. Historically this was the award of monetary
damages (money).
2. Remedies of equity are remedies founded in justice and fair dealing, when
no remedy at law exists.
3. Equitable Remedies—Three basic equitable remedies are available:
a. Specific performance is a judge’s order to perform what was promised;
only available when the case is about a contract.
b. Rescission is an action to undo a contract.
c. Injunction is a court order directing the defendant to do or to refrain from
doing a particular act.
C. The Common Law Today
1. The common law, which consists of the rules of law announced in previous
court decisions, still plays a significant role in the United States today.
2. The common law governs all areas not covered by statutory law.
3. When common law is codified, it means that a statute has been enacted to
cover the common law in issue.
D. The Terminology of Case Law
1. Case Titles
a. The title of a case, also known as the style of the case, indicates the
names of the parties to the lawsuit.
b. The parties to the lawsuit are the plaintiff, who initiates the lawsuit, and
the defendant, against whom the lawsuit is brought.
2. Citation—When attorneys and paralegals refer to a court decision, they give
not only the title of the case but also the case citation. The citation indicates
the reports or reporters in which the case can be found.
3. Judges and Justices
a. The terms judge and justice are usually synonymous and represent two
designations given to judges in various courts.
b. All members of the United States Supreme Court are referred to as
justices.
4. Opinions
a. The opinion contains the court’s reasons for its decision, the rules of law
that apply, and the judgment.
b. The name of the judge who authored the opinion is typically listed right
before the opinion, and the name of the judges who agree or concur with
the opinion appear at the conclusion.
c. If any judge disagrees with the court’s opinion, that judge may write a
separate dissenting opinion that indicates the reason for the
disagreement and how he or she would rule on the case.
E. Common Law and the Paralegal
1. A basic understanding of common law is needed to research and analyze
case law.
2. The concepts of stare decisis and different types of remedies will become
real and meaningful when applied to real-life situations faced by clients.
3. Common law also applies to tort law such as personal injury, malpractice,
and product liability lawsuits.
VIII. NATIONAL AND INTERNATIONAL LAW
A. National Law
1. The law of a particular nation is referred to as national law.
2. In contrast to Great Britain and the common-law countries, most of the other
European nations base their legal systems on Roman civil law, or “code
law.”
3. In a civil-law system, the primary source of law is a statutory code, and case
precedents are not judicially binding.
B. International Law
1. International law is a body of written and unwritten laws observed by
independent nations and governing the acts of individuals as well as
governments.
2. The key difference between national law and international law is that
national law can be enforced by government authorities, whereas
international law is enforced primarily for reasons of courtesy or expediency.
C. International Law and the Paralegal
1. An increasing amount of legal work has an international dimension.
2. Paralegals may be asked to research the law of a foreign country, assist
clients with overseas businesses, determine protection for patented product
internationally, determine contractual provisions for international sales of
goods, or send communications to foreign offices.
IX. BASIC JUDICIAL REQUIREMENTS
A. Types of Jurisdiction—Jurisdiction literally means the power to speak of the law.
In order for a court to hear a case, it must have jurisdiction over the person or
the property involved in the lawsuit and over the subject matter of the lawsuit.
1. Jurisdiction over Persons
a. Generally, a court can exercise personal jurisdiction over residents of
a certain geographical area.
b. Personal jurisdiction is also known as in personam jurisdiction.
c. A long arm statute allows a state court to exercise personal jurisdiction
over a nonresident defendant because of the defendant’s actions.
d. A state can exercise jurisdiction over a corporation if it is doing business
in the state.
2. Jurisdiction over Property
a. A court can exercise jurisdiction over property that is located within its
boundaries.
b. Jurisdiction over property is known as in rem jurisdiction.
3. Jurisdiction over Subject Matter
a. This is a limitation on the types of cases a court can hear.
b. In both the state and federal systems, there are courts of general
jurisdiction and of limited jurisdiction.
i.
Courts of general jurisdiction can hear most types of disputes.
ii. Courts of limited jurisdiction are restricted in the types of actions they
can decide.
c. The subject-matter jurisdiction of a court is usually defined in the statute
or constitution creating the court.
d. In both state and federal courts, a court’s subject-matter jurisdiction can
be limited by:
i.
The subject of the lawsuit
ii. The amount of money in controversy
iii. Whether the case is a felony or a misdemeanor
iv. Whether the proceeding is a trial or an appeal
4. Original and Appellate Jurisdiction
a. Courts of original jurisdiction are courts in which the trial of a case
begins.
b. Any court having original jurisdiction is known as a trial court.
c. Courts of appellate jurisdiction are reviewing courts.
d. Appellate courts do not try cases again but review the decisions of trial
courts.
B. Jurisdiction of the Federal Courts
1. Jurisdiction of federal courts is limited by Section 2 of Article III of the U.S.
Constitution. The case must arise under:
a. The Constitution
b. The Laws of the United States
c. Treaties entered into by the United States
2. Federal Questions—When a lawsuit is based, at least in part, on some type
of federal law, the case comes under the judicial power of the federal courts.
This is known as raising a federal question.
3. Diversity Jurisdiction
a. Federal courts can exercise jurisdiction over claims involving one of the
following:
i.
Diversity of citizenship, which involves a controversy exceeding
$75,000 and arises between citizens from different states
ii. Citizens from a foreign country and citizens of a state or of different
states
iii. Citizens of a state and citizens or subjects of a foreign country.
4. Exclusive versus Concurrent Jurisdiction
a. Exclusive jurisdiction exists when cases can be tried only in federal
courts or only in state courts. Federal courts have exclusive jurisdiction
in cases involving bankruptcy, federal crimes, patents, trademarks,
copyrights, suits against the United States, and in some areas of
admiralty law.
b. Concurrent jurisdiction exists when both federal and state courts have
the power to hear a case. States have exclusive jurisdiction in certain
subject matters, such as divorce and adoptions.
C. Jurisdiction in Cyberspace
1. The Internet’s capacity to bypass political and geographical boundaries
undercuts traditional basic limitations on a court’s authority to exercise
jurisdiction.
2. The “Sliding-Scale” Standard
a. This is a standard for determining when the exercise of jurisdiction over
an out-of-state party is proper.
b. Three categories of Internet business contacts are reviewed:
i.
Substantial business conducted over the Internet
ii. Some interactivity through a Web site
iii. Passive advertising
c. Jurisdiction is proper for the first category, is improper for the third, and
may or may not be appropriate for the second.
D. Venue
1. Venue is concerned with the most appropriate geographical location for a
trial.
2. The concept of venue reflects the policy that a court trying a suit should be
in the geographic neighborhood in which the incident leading to the suit
occurred or where the parties to the suit reside.
3. Pretrial publicity may be one reason to change the venue of a case.
E. Standing to Sue
1. To bring a lawsuit before a court, a party must have standing to sue, or a
sufficient “stake” in a matter to justify seeking relief through the court
system.
2. The “stake” in the matter means a legally protected and tangible interest in
the litigation, having suffered harm as a result of the action about which
the party is complaining.
F. Judicial Procedures
1. Litigation in court must follow specifically designated procedural rules.
2. Federal court procedures are set forth in the Federal Rules of Civil
Procedure.
3. State rules of procedure vary from state to state.
4. Court procedural rules are different for civil cases than for criminal cases.
G. Basic Judicial Requirements and the Paralegal
1. The paralegal’s value to the legal team is directly related to his or her
knowledge of the concepts affecting litigation procedures.
2. Paralegals should be familiar with such concepts as jurisdiction and venue.
3. Paralegals should be familiar with the procedural rules of the specific court
in which a case is filed.
4. Paralegals need to have a basic understanding of the different types of
courts that make up the American court system.
X.
STATE COURT SYSTEMS
A. Trial Courts
1. The structure of state court systems varies from state to state.
2. A typical state court system may consist of several tiers.
3. On the bottom tier are courts of limited jurisdiction.
4. On the next tier are usually trial courts of general jurisdiction, such as county
courts.
5. Trial courts are courts of original jurisdiction; they are where lawsuits are
initiated, trials are held, and evidence is presented.
B. Appellate, or Reviewing, Courts
1. Intermediate Appellate Courts
a. About three-fourths of the states have intermediate appellate courts.
b. These courts do not retry cases; instead, they review the record of the
case on appeal and determine whether the trial court committed a
prejudicial error of law.
2. Supreme (Highest) State Courts
a. The highest state appellate court is typically called the state supreme
court, although there are exceptions.
b. The decision of the state’s highest court on questions of state law are
final.
c. Cases can be appealed from state supreme courts to the United States
Supreme Court only when issues of federal law are involved.
C. State Court Systems and the Paralegal
1. Because each state has its own unique system of courts, paralegals must
become familiar with the court system of their particular state.
2. Paralegals must also become familiar with procedural requirements of
special courts to assist attorneys in drafting legal documents to be filed in
those courts.
XI. THE FEDERAL COURT SYSTEM
A. U.S. District Courts
1. U.S. district courts are the trial courts of the federal court system.
2. U.S. district courts are courts of general jurisdiction.
3. There is at least one U.S. district court in every state.
B. U.S. Courts of Appeals
1. Decisions from a district court can be appealed to the court of appeals of the
circuit (geographical area) in which the district court is located.
2. There are thirteen circuit courts of appeals.
3. Twelve hear appeals from the federal district courts located in their judicial
circuit.
4. The 13th Circuit Court of Appeals has national appellate jurisdiction over
certain types of cases:
a. Cases involving patent law
b. Cases in which the U.S. government is a defendant
5. Decisions rendered by these circuit courts may be appealed to the United
States Supreme Court.
C. The United States Supreme Court
1. The United States Supreme Court is the highest court and consists of nine
justices.
2. The United States Supreme Court has original, or trial court, jurisdiction in a
small number of situations, such as those affecting ambassadors.
Otherwise, the court has only appellate jurisdiction.
3. How Cases Reach the Supreme Court
a. There is no absolute right of appeal to the Supreme Court.
b. If the Court decides to review a case, it will issue a writ of certiorari.
c. A writ of certiorari is an order to a lower court requiring it to send to the
Supreme Court the record of a case for review.
4. Types of Cases Reviewed by the Supreme Court—The Supreme Court
generally reviews cases that raise important constitutional questions that
conflict with other state or federal court decisions, or that issue and generate
a decision to define the law on the matter.
D. The Federal Court System and the Paralegal
1. Paralegals deal occasionally with the federal court system.
2. Paralegals should know the specific requirements of the particular federal
court in which a client’s lawsuit is to be filed.
XII. ALTERNATIVE DISPUTE RESOLUTION
Approximately 95 percent of cases are settled before trial through some form of
ADR.
Deciding Disputes in an Alternative Fashion
Litigation is not always resolved in a courtroom. Alternative Dispute
Resolution (ADR) is an advantage to litigation as it saves the expense and
time of trying a case. ADR methods are increasingly popular and valuable.
Look for online ADR methods to become available.
A. Negotiation and Mediation
11. Negotiation is the simplest method of alternative dispute resolution (ADR).
1
12. Negotiation may or may not involve a third party.
13. The parties to the lawsuit simply try to work out their problems to avoid
going to court.
14. A settlement agreement is an out-of-court resolution to a legal dispute,
which is agreed to by the parties in writing.
15. Out-of-court settlement agreements are reached in the majority of lawsuits,
usually before the trial begins.
16. Mediation is a form of ADR in which the parties attempt to reach
agreement with the help of a neutral third party.
17. A mediator or panel of mediators helps the parties explore alternative
possibilities for settling their differences as amicably as possible.
18. Usually a mediator charges a fee, which can be split between the parties.
19. The mediator proposes various solutions for the parties to consider.
10. The mediator does not make a decision about the matter in dispute.
11. Many state and federal courts now require that parties mediate their
disputes before bringing the disputes before the court.
12. When mediation is required by the court, the court may appoint the
mediator.
13. Because a mediator need not be a lawyer, this field is open to paralegals
who acquire training and expertise in the area.
D. Arbitration
1. Arbitration is the most formal method of ADR.
a. In arbitration the third party hearing the dispute makes the decision for
the parties, a decision that may be legally binding on the parties.
b. The arbitrator is acting as a private judge.
2. Arbitration Clauses and Statutes
a. Increasingly, parties are including provisions in their contracts by which
they agree to arbitrate any disputes that may arise under the contract.
b. The arbitration clauses will likely be enforced under a federal or state
arbitration statute.
3. The Arbitration Process
a. In arbitration, a neutral third party renders a decision after the parties
present their cases and evidence in a hearing.
b. In voluntary arbitration, the parties normally agree at the outset to be
legally bound by the arbitrator’s decision.
c. The final decision of the arbitrator is called the award, even if no money
is conferred.
E. Other ADR Forms
1. Binding Mediation—In this form of ADR, a neutral mediator tries to facilitate
agreement between the parties; but if no agreement is reached, the
mediator issues a legally binding decision on the matter.
2. Mediation Arbitration (med-arb)—In med-arb, an arbitrator first attempts to
help the parties reach an agreement, just as a mediator would. If no
agreement is reached, then formal arbitration is undertaken, and the
arbitrator issues a legally binding decision.
3. Assisted Negotiation—These forms involve a third party in what is
essentially a negotiation process.
a. Early Neutral Case Evaluation—The parties select a neutral third party
to evaluate their respective positions. The parties explain their positions
to the case evaluator. The case evaluator’s assessment forms the basis
of negotiating the settlement.
b. Mini-Trial—Each party’s attorney briefly argues the party’s case before
representatives of each firm who have the authority to settle the dispute.
F. Still Another Approach—Collaborative Law
1. The parties, their attorneys, and any professionals working with the parties
agree to meet to resolve all their issues without litigation.
2. The attorneys agree not to take part in any litigation that may occur if an
agreement is not reached.
G. Court-Referred ADR
1. The majority of states either require or encourage parties to undergo
mediation or arbitration prior to trial.
2. Several federal courts have instituted ADR programs.
3. Numerous federal courts now hold summary jury trials (SJT) in which the
parties present their arguments and supporting evidence, but no witnesses,
to a jury, which renders a verdict. The verdict is not binding, but it serves as
a guide for the parties in reaching a settlement. Mandatory negotiations
immediately follow the SJT.
H. Providers of ADR Services
1. ADR services are provided by both government agencies and private
organizations.
2. A major provider of ADR services is the American Arbitration Association
(AAA).
I.
Online Dispute Resolution
1. A number of companies and organizations offer dispute-resolution services
via the Internet.
2. The settlement of disputes in these online forums is known as online dispute
resolution (ODR).
a. Online Negotiation
b. Online Mediation
c. Online Arbitration
J. ADR and the Paralegal
1. Paralegals will play an increasing role in ADR in the future.
2. Some paralegals are qualified mediators and directly assist parties in
reaching a mutually satisfactory agreement.