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U.S. Law—Sources & Hierarchy

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1 U.S. Law—Sources & Hierarchy
Presentation by Gary Chodorow (Revised Feb. 10, 2009) For research: * Explain how to find & cite each

2 The U.S. Has 51 Legal Systems (at least)
The U.S. has a “federalist” not “unitary” gov’t, including: Federal gov’t with its legal system. 50 states, each with some degree of independence, and its own legal system. At least b/c: Puerto Rico Indian laws

3 Sources of Law—By Type Enacted Law (state & federal)
Constitutions Statutes Treaties Court Rules Administrative Agency Rules Caselaw (state & federal) Judicial: Common Law Caselaw Caselaw Interpreting Enacted Law Administrative Agency Decisions Secondary Authorities 0. Separation of Powers: Note that each branch makes law… 3. Not really law at all but a may persuade what a J what the law is or should be.

4 Hierarchy of Sources of Law
U.S. Constitution. Federal statutes, treaties, and court rules. Federal administrative agency rules. Federal common law caselaw. State constitutions. State statutes and court rules. State agency rules. State common law caselaw. Secondary authorities * Each level of enacted law includes caselaw interpreting enacted law. As we review each source, we’ll talk about why it’s got its place in the hierarchy. Also: Executive orders: directives from Pres to other officials in the exec branch. NAms have certain rts of self-gov’t under Const, incl: Pwr to tax, pass own laws, have own cts. Fed laws generally apply to NAms and their prop unless Cong ntdd to exempt them or where NAms have treaty rts w/Fed gov’t.

5 Constitutional Basis for The Hierarchy
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. --Art. V, § 2 Const on top. Law below b/c only “supreme Law” if “in pursuance” of Const. State Constits & laws inferior. Limits: Fed law not “in pursuance” of Const not Supreme. Amend X: “Pwrs not delegated to the US by the Const nor prohib’d by it to the States, aare reserved to the Sts or to the people.

6 1. Enacted Law U.S. Constitution
“This Constitution shall be the supreme Law of the Land.” -- U.S. Const. art. VI, § 2.

7 Constitutional Convention (1787)
Ratified (1788)—9 of 13 states req’d. Art. VII. Amends (Art. V) --27 amends so far. --First 10 amends = Bill of Rts ….(?) --2 methods for proposing… --Constl convention never used—controversial b/c any amends could be proposed. --Every yr many amends intro’d in Cong, few successful --2 methods ratification… --St legislatures successfully used only for 21st amend (repeal of 18th amend prohibition on alcoholic liquor) 3c. That’s Const Art VI (supremacy cl.)

8 State Constitutions Enacted around time of Declaration of Independence
May provide greater rights than U.S. Constitution

9 Statutes Federal Statutes’ Place in the Hierarchy of Laws:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties shall be the supreme Law of the Land.” -- U.S. Const. art. VI, § 2.

10 How Statutes are Published
Statutes at Large published in official version plus in commercial versions by West (U.S. Code Congressional & Administrative News) and Lexis (U.S. Code Service) Session laws: Statutes at Large Code: United States Code

11 Session Law v. Code “Session Law” = all laws published during a session in chronological order “Code” = laws organized by subject matter. 0. This applies to state or federal statutes. Distinguish “statute” (law passed by leg) from “Bill” (proposed law under leg’s csd). Cite session law when referring to amendments to law—eg, insert & strike Cite code when referring to current reading of law—most common

12 Session law v. Code Old Code: “A person who steals an airplane will be imprisoned for 10 years.” 18 U.S.C. § 103 (2005). Session law: “In 18 U.S.C. § 103, delete the word ‘10’ and insert in its place ‘15’.” Airplane Crime Act, Pub. L , 86 Stat. 982 (2007). New Code: “A person who steals an airplane will be imprisoned for 15 years.” 18 U.S.C. § 103 (2007). Cite old code when want to explain historical law. Cite session law when want to explain changes to law. Cite current code when referring to current law.

13 U.S. Code Divided into 50 “titles” by subject. E.g.:
Title 8 Aliens and Nationality Title 17 Copyrights Title 22 Foreign Relations and Intercourse Sample citation: 8 U.S.C. § 1101 (2005). 2. Cite to current code unless want to show historical version USCS also contains annotations for Constitution.

14 Annotated Codes “Annotated Code” = code plus annotations:
Cross-references to other statutes, constitutional provisions, or rules of court--may modify or supplement your statute. Collateral References to legal encyclopedias, American Law Reports, some law reviews. Notes to Decisions: Brief summaries of all reported state and federal decisions that construe your statute. Amendment Notes: Details of changes made to the statute by the legislature. USCA, USCS

15 Statutes at Large Contents are called “session laws” because they are all laws published during a Congressional session in chronological order. Sample citation: National Environmental Policy Act of 1969, Pub. L. No , 83 Stat. 852 (1970). Session = 2 yrs long. 110th Cong is Session Laws: Public Law No. sequential for the session Statutes at Large location: volume published end of session. Statutes at Large published in official version plus in commercial versions by West (U.S. Code Congressional & Administrative News) and Lexis (U.S. Code Service) Session Order Volume Statutes Page# Year passed at Large enacted

16 Treaties Signed by President & Senate consents with 2/3 vote.
0. Intl law—treaty is any agrt b2n mult countries. US makes above distinction. Executive agrts mostly relate to pres’ role as commander in chief or top diplomat (e.g., recognize a fgn govt); Exec agrts have no Senate consent. Self-executing: Domestic cts will only find that treaty rts flow directly to litigants if treaty “self executing” or implemented by an act of Cong. Test: Self-executing if that was ntt. Factor: Find such ntt if spec, reads like stat. E.g.: Vienna Convention on Consular Relations—FN arrested for a crime must be informed w/out delay of rt to consult w/own Cons. Suppress ev: Treaty not self-executing—i.e., no such rt. Tort: civil dmgs against police—yes, self-executing. These dox in “U-S- Treaties & Other Intl Agreements” US puts treaties & fed stats at equal level on hier of laws. Ratification. After the Senate consents to a treaty, the President is free to ratify it. Ratification is the formal process declaring the willingness of the state to be bound by a treaty. Ratification is usually confirmed in a formal document called an "instrument of ratification." The President must give effect to all conditions imposed by the Senate for its consent. If the President decides that under international law the treaty cannot be interpreted as the Senate has required, he has no authority to ratify the treaty, unless the instrument of ratification is accompanied by express language conforming to the Senate's understanding. The instrument of ratification includes the title of the treaty, the date of signature, the countries involved, and the languages used. The President can also attach a statement of understanding or a declaration regarding the Senate's understanding of a treaty, even if the Senate did not offer a formal reservation or understanding.

17 Court Rules Federal court rules adopted by Judicial Conference of the U.S.: Federal Rules of Civil Procedure Federal Rules of Criminal Procedure Federal Rules of Appellate Procedure Federal Rules of Evidence J’l conf= js, academics, Ls. Fed ct rules same level as hier as stat; some sts place ct rules above stat. J’l Cf is part of j’l branch—advisory comm of legal academics, Js, Ls draft rules—rev’d by SCt—become law unless Cong intervenes.

18 Agency Regulations Federal regulations published each day in Federal Register Sample Citation: Federal Acquisition Regulations for National Aeronautics and Space Administration, 55 Fed. Reg. 58,782 (Dec. 21, 1990) Administrative agencies do much of the work of gov’t. Egs: DOD, DHS, DOS, EPA, HHS, DOL Cong often writes stats authorizing agencies to make rules w/in their expertise. NOTICE AND COMMENT RULEMAKING: Under APA, any agency decision that sets binding obligations or standards for a class of people is a rule. Rulemaking is particularly imp in technical areas such as environmental law, where Cong has historically delegated broad discretion to the agencies to implement stats. Most administrative rules go thru process known as notice & comment rulemaking. Before issuing most rules, agency must issue a notice of proposed rulemaking in the Federal Register. This notice must describe the proposed rule, & give public at least 30 days to provide comments. After receiving comments, agency can issue a final rule, along w/general stt describing the rule's authority and purpose. Because agency must csd all nonfrivolous comments, agencies will often respond to comments in issuing a final rule. Any interested party that participates in the rulemaking can challenge the legality of the rule in a court.

19 Agency Regulations (cont’d)
Regulations codified in Code of Federal Regulations Sample citation: 7 C.F.R. § (1999) Same titles as stats. Cite current yr unless giving historical reg. State regs pretty similar

20 Precedent from Agency Adjudications
Examples of agencies that adjudicate cases: Board of Immigration Appeals (DOJ) Social Security Appeals Council (HHS) National Labor Relations Board (DOL) Agency may designate decisions as precedent. 0. Cong sometimes gives agencies adjudication fns. Agencies may designate certain decisions as precedent. If so, law.

21 2. Caselaw Principle of stare decisis: Future cases should be decided the same way as similar past cases. Policy goals: Fairness: Equality before the law Predictability Judicial efficiency 0. Caselaw = ct decisions in indiv cases. Csdd a source of “precedent” for deciding future cases. Fairness: Equality before the Law: “It will not do to decide the same question one way between one set of litigants and the opposite way between another…. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights.”--Benjamin Cardozo, The Nature of the Judicial Process (1921). This fairness may also increase j’l credibility: J seems more credible if decision is constrained. 2. Predictability: Ls can predict for clts likely outcome where statute is ambiguous. Clt can act accordingly. 3. Judicial efficiency: J need not reconsider legal issues already decided. End: Note—These are the exact same policies behind “rule of law”: Fairness/Equality before the Law: Rule of law requires gov’t to act according to well-established and clearly written rules. When gov’t official acts pursuant to an express provision of a written law, he acts w/in rule of law. But when a gov’t official acts without the imprimatur of any law, she does so by the sheer force of her will and power. SIMILARLY, SD aims to promote fairness—equality b4 law—by lmting J’s discretion of how to interp rules applied to resolve dispute. Predictability: Rule of law allows gov’t to impose liability only pursuant to law. Govt exceeds authority when person held to answer for an act that was legally permissible at the outset but was retroactively made illegal. SIMILARLY, SD aims to give public advance notice of how laws will be interpreted to reduce liability under unexpected interpretations of law. J’l Efficiency: If no rules, then ruler must personally decide every dispute. Stare decisis is essentially the extension of the idea of rule of law into case decisions.

22 Caselaw Interpreting Enactments
Caselaw interpreting enacted law is at the same level of hierarchy as the enacted law it interprets. E.g., United States v. Lopez (U.S. 1995) interprets the Constitutional provision that Congress has the power to “regulate commerce … among the several states.” Art. I, § 8, cl. 3 E.g., stat: it means whatever cts say it means. This incls const b/c in Marbury v. Madison (1803), Supreme Court held cts are the ultimate interpreters of const.

23 Common Law Caselaw Defined: Body of law developed solely through judicial opinions Common law caselaw is lowest level in hierarchy of sources of law, so it can be displaced by enactment. State common law caselaw prevalent in many areas, such as torts, contracts, property. Federal common law caselaw limited to (a) areas that Congress directs; and (b) areas of strong federal interests. 4. For examples, see Burnham p.40, last para.

24 Publication of Caselaw
All SCt decisions published. For lower ct decisions, judge who decides case has option to publish it. Cases published in “reporters.” E.g.: United States v. Lopez, 514 U.S. 111 (1942). Parties Volume Reporter Page # Yr Decided 4. Unpublished decisions generally can’t be cited in arguments. 1. About 50% fed appellate decisions pub’d. Ct may have rules on pub’n. 2. Lexis “Get a doc” or Westlaw ??? Some reporters are official (e.g., US), some are commercial (e.g., S.Ct.). Preference for official where available. 2. Rules for pub’n; each ct has rules for citation of unpub’d cases in pleadings or briefs: May still be on Lexis—note on top that not pub’d CA: Can’t cite to unpublished ops in pleadings or briefs filed w/cts. (Rules ); some sts say can cite if attach copy

25 Shepardizing Shepard’s Citations allows a researcher to check whether case is still valid law, i.e., hasn’t been overruled. Warning—eg, reversed, overruled Questioned, Caution—eg, criticize or distinguish case Positive Treatment—eg, followed Shepard’s symbols are just guides—you still have to read the case to reach your own determination. Eg, Plessy v. Ferguson (1896) (separate but equal) overruled by Brown v. Bd of Ed (1954), but until 1987 Shepard’s showed Plessy as merely “questioned” not “overruled.” Try Shepardizing 64 NE 442 (Roberson v. Rochester Folding Box Co.)

26 3. Secondary Authorities
Treatises Law reviews Legal encyclopedias Digests American Law Reports Looseleafs Restatements 0. Remember—2dary sources are not law, but they may be good finding tools and treatises and l.revsmay have persuasive auth based on scholarly reputation of author

27 Treatises “Treatise” = Comprehensive scholarly analysis of a selected field of law. Usually multiple volumes. Examples of well known treatises: Corbin on Contracts McCormick on Evidence Prosser on Torts Look at research guides and pathfinders to find treatises.

28 Law Reviews (Law Journals)
Periodicals Usually published by law schools “Peer review” Contain articles by professors & scholars analyzing and discussing legal issues. E.g.: Harvard Law Review, California Law Review Lists of law reviews for China & U.S. on class website. “Legal Resource Index”: Index of 900 law journals, law newspapers, and specialty publications in the US and Britain. Covers 1977-now. Updated weekly.

29 Legal Encyclopedias “Legal Encyclopedia” = Multi-volume, multi-topic work assembling discussions of the entire body of law. Examples of popular legal encyclopedias: American Jurisprudence 2d Corpus Juris Secundum Cal. Jur. 3d Finding tool but not persuasive auth

30 Digests “Headnotes” are summaries found at the top of a case of the points of law covered in the case. By editor, not judge. “Digest” = Work arranging together all the headnotes on similar topics. Used for finding decisions on specific subjects. Don’t quote—read the case! Can also just run LEXIS search in full-text database of cases for any jrd (eg, all Cal cases or all 7th circuit cases). But maybe not successful cuz cts use dif keywords (e.g., you look for cases suing city for tree in park falling on clt’s head. You may search for “tree”, but j’l op may use word “oak” or “maple” instead of tree). Work can be found in set of books. Can also search on LEXIS (see next slide).

31 Sample Lexis Headnote Immigration Law > Judicial Review > Standards of Review > Abuse of Discretion  Immigration Law > Judicial Review > Scope of Review  HN2 A court reviews a decision by the Board of Immigration Appeals for an abuse of discretion. The board abuses its discretion when it fails to show that it has properly considered all of the relevant hardship factors or neglects to state its reasons for denying relief….   More Like This Headnote Top of Urban v INS. Sample headnote: This is HN2… Read & blue clickable..

32 American Law Reports A.L.R. annotation provides analysis on a point of law & abstracts of decisions on the point from all U.S. jurisdictions. Updated annually. E.g.: “Smoking as a Basis for Reduction of Damages in a Personal Injury Action” “What Constitutes ‘Violent Felony’ For Purpose Of Sentence Enhancement Under Armed Career Criminal Act (18 U.S.C.A. § 924(e)(1))?” For some legal issues, no annotation exists, but if there is one it can be very helpful. Features: Article Related Annotations Case summaries—especially good on areas of state law—get cases from all states Index of Terms—key words for computer searches Other secondary sources Finding tool but not persuasive auth.

33 Looseleafs “Looseleaf” = Integrated legal research tool focusing on specific subject including statutes, cases, administrative rules and decisions, editorial commentary E.g.: BNA’s International Trade Reporter Decisions CCH’s U.S. Tax Cases Interpreter Releases (immigration law)

34 Restatements Summary of an area of common law.
Tries to pick “best” rule from among states’ common law. Includes comments, published by the American Law Institute. E.g.: Restatement Second of Torts; Restatement Second of Contracts The New York Times March 19, 2007 Section A; Column 1; National Desk; SIDEBAR; Pg. 8 When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant By ADAM LIPTAK ''I haven't opened up a law review in years,'' said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. ''No one speaks of them. No one relies on them.'' In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts. The assembled professors mostly agreed, though they differed about the reasons and about whether the trend was also a problem. Some suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship. Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions -- which is to say the practice of law -- is beneath them. The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts' caseload has exploded in the meantime. The law professors at the conference said they loved being cited, even negatively. Paul M. Shupack, who teaches contracts and commercial law at Cardozo, reminisced about having his work on lien priorities mentioned in a footnote to a decision of the Second Circuit by Judge Henry J. Friendly in ''Judge Friendly cited it and said our position was alarming,'' Professor Shupack said at the conference. ''I was happy he had read it.'' Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month's decision striking down parts of the District of Columbia's gun control law. On the one hand, Professor Dorf said, ''there's no such thing as bad publicity.'' On the other, he said it was vexing to see his article caricatured rather than engaged. The District of Columbia Circuit had, he said, at least tried to engage the legal scholarship on a difficult and important question. He had less sympathy for judges who have given up on the academy. ''The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable,'' Professor Dorf said. There are other reasons for the diminished influence of law reviews. One is the emergence of electronic databases. ''Before search engines,'' said Marci A. Hamilton, a law professor at Cardozo, ''if you wanted to figure out what all the cases on a given topic said, you went to a law review.'' Now you punch some words into Lexis or Westlaw. A second is that the number of law reviews has grown in recent years, and some law schools now publish a half-dozen. Some of the drop-off in citations to the most prestigious law journals may have been offset by citations to publications like The American University Journal of Gender, Social Policy and the Law; The Marquette Sports Law Review; or The Washington and Lee Race and Ethnic Ancestry Law Journal. But probably not. Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. ''Judges use them like drunks use lampposts,'' Judge Sack said, ''more for support than for illumination.''

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