law of the United
States consists of many levels 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
consists of constitutional acts of
, constitutional treaties
ratified by Congress
constitutional regulations promulgated by the executive branch
, and case law
originating from the federal judiciary
The Constitution and federal law are the supreme law of the land
circumscribing state and territorial laws in the fifty U.S. states
and in the territories. In the unique
dual-sovereign system of American federalism
(actually tripartite when one includes Indian reservations
), states are the
, while the federal sovereign possesses
only the limited supreme authority enumerated in the Constitution.
Indeed, states may grant their citizens broader rights than the
federal Constitution as long as they do not infringe on any federal
constitutional rights. Thus, most U.S. law (especially the actual
"living law" of contract
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.
At both the federal and state levels, the law of the United States
was originally largely derived from the common law
system of English law
, which was in force at the time of
the Revolutionary War
However, U.S. law has diverged greatly from its English ancestor
both in terms of substance and procedure, and has incorporated a
number of civil law
Sources of law
In the United States, the law is derived from four sources. These
four sources are constitutional law
regulations, and the common law (which includes case law
). The most important source of law is the
. All other law falls under and is subordinate to
that document. No law may contradict the Constitution.
Congress enacts a statute that conflicts with the Constitution, the
Supreme Court may find that law unconstitutional and declare it
Notably, a statute does not disappear automatically
because it has been found unconstitutional; it must 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. 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.
American common law
The United States and most Commonwealth
countries are heirs to
the common law
legal tradition of
; Certain practices
traditionally allowed under English common law were expressly
outlawed by the Constitution, such as bills of attainder
and general search
As common law courts, U.S. courts have inherited the principle of
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
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
" 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.
Some reception statutes impose a specific cutoff date for
reception, such as the date of a colony's founding, while others
are deliberately vague. 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, such as the
heightened duty of care traditionally imposed upon common carriers
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 that many lawyers will recognize are the
Statute of Frauds
known in the U.S. by that name) and the Statute of 13 Elizabeth
ancestor of the Uniform
Fraudulent Transfers Act
). Such English statutes are still
regularly cited in contemporary American cases interpreting their
modern American descendants.
However, it is important to understand that despite the presence of
reception statutes, much of contemporary
law has diverged significantly from English common law. The reason
is that 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. This was because appellate
decisions from many American courts were not regularly reported
until the mid-19th century; lawyers and judges, as creatures of
habit, used English legal materials to fill the gap. But 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. The number of published
volumes of American reports soared from eighteen in 1810 to over
8,000 by 1910. 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
current British law almost never gets any mention." Foreign law has
never been cited as binding precedent, but merely as a reflection
of the shared values of Anglo-American civilization or even Western
civilization in general.
Levels of law
originates with the Constitution,
which gives Congress the power to enact statutes
for certain limited purposes like
regulating interstate commerce
Nearly all statutes have been codified in the United States Code
. Many statutes give
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
. 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
In the beginning, 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
, foreign affairs
), and mail
. Since the start of the
20th century, aggressive interpretations of the Commerce and
Spending Clauses of the Constitution have enabled federal law to
expand into areas like aviation
, 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
, 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
Under the doctrine of Erie Railroad Co. v.
(1938), there is no general federal common law
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, 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
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. When hearing claims under state law pursuant to diversity jurisdiction
, federal trial
apply the statutory and decisional law of the
state in which they sit, as if they were a court of that
If this was not confusing enough, state courts are not
bound to follow judicial interpretations of federal law from the
federal courts that sit in a state, including federal courts of
appeals and district courts (that is, the intermediate appellate
courts and trial courts). 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.
Federal statutory enactment procedure
President signs a bill into law, 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
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
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.
Every six years, public laws are incorporated into the United States Code
, which is a
codification of all general and permanent laws of the United
States. A supplement to the United States Code is published during
each interim year until the next comprehensive volume is published.
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.
Formulation of federal precedent
Unlike 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
precedessors. Federal courts are solely creatures of the federal
Constitution and the federal Judiciary Acts. However, it is
universally accepted that the Founding Fathers of the
, 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. 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.
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.
As Judge Alex Kozinski
binding precedent as we know it today simply did not exist at the
time the Constitution was framed. 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.
Furthermore, English judges in the eighteenth century subscribed to
now-obsolete natural law
law, by which law was believed to have an existence independent of
what individual judges said. They saw themselves as merely
declaring the law which had always theoretically existed, not
making it. Therefore, a judge could reject another judge's opinion
as simply an incorrect statement of the law, like how scientists
regularly reject each other's conclusions as incorrect statements
of the laws of science.
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
), and the beginning of regular verbatim
publication of U.S. appellate decisions by West Publishing
. It 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). It is generally justified today as a matter of
public policy, first, as a matter of fundamental fairness, and
second, that 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
, 39 Stan.
571, 595-602 (1987).
Here is a typical exposition of that public policy in a 2008
Associate Justice Stephen
However, since precedents became binding, it is now sometimes
possible, over time, for a line of them to drift away from the
express language of any underlying statutory or constitutional
texts, until such texts are severely overloaded with implied
meanings not even hinted at on their face. This tendency towards
so-called judicial lawmaking has been particularly obvious in
federal due process
decisions. Due to
obvious tension with the reservation of legislative power to
Congress in Article One of the
United States Constitution
, it is often subject to harsh
criticism as "antidemocratic" from originalists
such as Associate Justice Antonin Scalia
, as in this 2000 dissenting opinion
The fifty American states are separate sovereigns
with their own state constitutions
, state governments
, and state courts
(including state supreme courts
). They retain
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
Most cases are litigated in state courts and involve claims and
defenses under state laws. Each year, only about 280,000 civil and
criminal cases are heard in federal courts, as opposed to 27.5
million civil and criminal cases in state courts (these numbers
exclude 858,000 federal bankruptcy cases, and in state courts, 4.5
million domestic, 1.7 million juvenile, and 55 million traffic
The law of most of the states is based on the common law
of England; the notable exception is
Louisiana, whose civil law
based upon French
and Spanish law
. The passage of time has led to
state courts and legislatures expanding, overruling, or modifying
the common law; as a result, the laws of any given state invariably
differ from the laws of its sister states.
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.
All states have codified some or all of their statutory law into
. Codification was an idea
borrowed from the civil law through the efforts of American lawyer
David Dudley Field
. New York's codes are
known as "Laws." California and Texas simply call
Other states use terms such as "Revised
Statutes" or "Compiled Statutes" for their compilations.
California, New York, and Texas have separate subject-specific
codes, while all other states and the federal government use a
single code divided into numbered titles.
In some states, codification is often treated as a mere restatement
of the common law, to the extent
that the subject matter of the particular statute at issue was
covered by some judge-made principle at common law. Judges are free
to liberally interpret the codes unless and until their
interpretations are specifically overridden by the legislature. In
other states, there is a tradition of strict adherence to the plain
text of the codes.
The advantage of codification is that once the state legislature
becomes accustomed to
writing new laws as amendments to an existing code, the code will
usually reflect democratic sentiment as to what the current law is
(though the entire state of the law must always be ascertained by
reviewing case law to determine how judges have interpreted a
particular codified statute).
contrast, in jurisdictions with uncodified statutes, like the
Kingdom, determining what the law is can be a more
One has to trace back to the earliest
relevant Act of Parliament, and then identify all later Acts which
amended the earlier Act, or which directly overrode it.
example, when the UK decided to create a Supreme Court of
the United Kingdom, lawmakers had to identify every single Act
referring to the House of
Lords that was still good law, and then amend all of
those laws to refer to the Supreme Court.
Attempts at "uniform" laws
Efforts by various organizations to create "uniform" state laws
have been only partially successful. The two leading organizations
are the American Law
(ALI) and the National
Conference of Commissioners on Uniform State Laws
most successful and influential uniform laws are the Uniform Commercial Code
ALI-NCCUSL project) and the Model Penal
Apart from model codes, the American Law Institute
created Restatements of the
which are widely used by lawyers and judges to simplify the
task of summarizing the current status of the common law. Instead
of listing long, tedious citations of old cases that may not fit
very well together (in order to invoke the long-established
principles supposedly contained in those cases), or citing a
treatise which may reflect the view of only one or two authors,
they can simply cite a Restatement section (which is supposed to
reflect the consensus of the American legal community) to refer to
a particular common law principle.
Law affects every aspect of American
life, including parking lots.
Note the citations to statutes on the sign.
States have delegated lawmaking powers to thousands of agencies
, and special
. 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.
It is common for residents of major U.S. metropolitan areas
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). 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.
Types of law
Traditionally, lawyers distinguish between procedural law (which
controls the procedure followed by courts and parties to legal
cases) and substantive law (which is what most people think of as
law). In turn, procedural law is divided into criminal procedure
and civil procedure.
The law of criminal procedure
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
a method to enforce such rights. 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
is used by
suspects to recover tort damages for police brutality.
The law of civil procedure
process in all judicial proceedings involving lawsuits between
private parties. Traditional common law pleading
was replaced by code pleading in most
states by the turn of the 20th century, and was subsequently
replaced again in most states by modern notice pleading. The old
English division between common law
courts was abolished in the
federal courts by the adoption of the Federal Rules of Civil
in 1938 and has also abolished in nearly all states.
The Delaware Court of
is the most prominent of the small number of remaining
A slight majority of states have adopted rules of civil procedure
closely 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 and California are the most significant states that have
not adopted the FRCP. Furthermore, both states continue to maintain
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.
Generally, American civil procedure has several notable features,
including extensive pretrial discovery
, heavy reliance on live testimony
obtained at deposition
in front of a jury
, and aggressive pretrial
"law and motion" practice designed to result in a pretrial
disposition (that is, summary
) 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
under which parties generally bear their own attorneys'
fees (as opposed to the English Rule
"loser pays"), though American legislators and courts have carved
out numerous exceptions.
Substantive law comprises the actual "substance" of the law; that
is, the law that defines legally enforceable rights and duties, and
what wrongful acts amount to violations of those rights and duties.
Because substantive law by definition is enormous, the following
summary briefly covers only a few highlights of each of the major
components of American substantive law.
involves the prosecution
of wrongful acts by the state
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,
can result in incarceration
, but torts (see below) cannot.
The vast 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"
), such as murder
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
, and orders to pay
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,
. These may result in fines
and sometimes the loss of one's driver's license, but no jail
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
varied greatly prior to
1990. State laws dealing with drug
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
The Uniform Commercial Code
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
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 of
Parties are permitted to agree to arbitrate
disputes arising from their contracts.
Under the Federal Arbitration
(which has been interpreted to cover all
arising under federal or state law), arbitration clauses are
generally enforceable unless the party resisting arbitration can
or something else which undermines the entire
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
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
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
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 1965
and was very influential throughout the United States. Outside the
U.S., the rule was adopted by the European Economic Community in
the Product Liability Directive of July 1985, by Australia in July
1992, and by Japan in June 1994.
By the 1990s, the avalanche of American cases resulting from
and Section 402A had become so complicated that
another restatement was needed, which occurred with the 1997
publication of the Restatement (Third) of Torts: Product
Much of Louisiana law
is derived from
French and Spanish civil law, which stems from its history as a
colony of both France and Spain. Puerto
, a former Spanish colony, is also a civil law
jurisdiction of the
United States. However, the criminal law of both jurisdictions has
been necessarily modified by common law influences and the
supremacy of the federal Constitution.
Furthermore, Puerto Rico is also unique in that it is the only U.S.
jurisdiction in which the everyday working language of court
proceedings, statutes, regulations, and case law is Spanish
. All states, the
federal government, and most territories use American English
as their working language.
Some states, such as California, do provide certain court forms in
several languages for the convenience of immigrants and naturalized
citizens. But American law as developed through statutes,
regulations, and case law is always in English, attorneys are
expected to take and pass the bar examination in English, judges
hear oral argument and give orders from the bench in English, and
testimony and documents originating in other languages is
translated into English before being incorporated into the official
record of a case.
Many states in the southwest that were originally Mexican territory
have inherited several unique features from the civil law that
governed when they were part of Mexico. These states include
Arizona, California, Nevada, New Mexico, and Texas.
example, these states all have a community property system for the
property of married persons (Idaho, Washington, and Wisconsin have also adopted community property systems, but
they did not inherit them from a previous civil law system that
governed the state).
Another example of civil law influence
in these states can be seen in the California Civil Code
, where the law
of contracts is treated as part of the law of obligations
(though the rules
actually codified are clearly derived from the common law).
the western states, including
California, Colorado, New
Mexico, and Wyoming use a system of allocating water rights known as the prior appropriation
doctrine, which is derived from Spanish civil law.
should be noted that each state has modified the doctrine to suit
its own internal conditions and needs.
- See Stephen Elias and Susan Levinkind, Legal Research: How
to Find & Understand The Law, 14th ed. (Berkeley: Nolo,
- William Burnham, Introduction to the Law and Legal System
of the United States, 4th ed. (St. Paul, MN: Thomson West,
- Pruneyard Shopping Center v.
- Lawrence M. Friedman, A History of American Law, 3rd
ed. (New York: Touchstone, 2005), 307 and 504-505.
- Graham Hughes, "Common Law Systems," in Fundamentals of
American Law, ed. Alan B. Morisson, 9-26 (New York: Oxford
University Press, 1996), 33.
- Hughes, 12.
- 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.
- Paul Bergman and Sara J. Berman-Barrett, Represent Yourself
In Court: How to Prepare & Try a Winning Case, 6th ed.
(Berkeley: Nolo, 2008), 481.
- See Marbury v. Madison, .
- 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).
- Friedman, 67-69.
- U.S. Const., Art. 1, §§ 9 and 10.
- U.S. Const.,
- 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.
- Antonin Scalia and Amy Gutmann, A Matter of Interpretation:
Federal Courts and the Law (Princeton: Princeton University
Press, 1998), 3-13.
- 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.
- See, e.g., Gomez v. Superior Court (Walt Disney Co.),
35 Cal. 4th 1125 (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.
- See, e.g., Phillippe v. Shapell Industries, 43 Cal. 3d 1247 (1987) (citing original Statute of
Frauds from England) and Meija v. Reed, 31
Cal. 4th 657 (2003) (citing Statute of 13 Elizabeth).
- Burnham, 43-44.
- Friedman, 69.
- 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.
- Friedman, 475.
- Lawrence M. Friedman, American Law in the Twentieth
Century (New Haven: Yale University Press, 2004), 575.
- 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
- Romero v. International Terminal Operating Co., 358
U.S. 354, 360–361 (1959).
- Hughes, 13-14.
- Hughes, 13.
- 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).
- Michael J. Gerhardt, The Power of Precedent (New York:
Oxford University Press, 2008), 59.
- Daniel A. Farber and Suzanna Sherry, Judgment Calls:
Principle and Politics in Constitutional Law (New York: Oxford
University Press, 2008), 70-71.
- U.S. Const.,
- See .
- Alan B. Morisson, "Courts," in Fundamentals of American
Law, ed. Alan B. Morisson, 57-60 (New York: Oxford University
Press, 1996), 60.
- Burnham, 53.
- California is
the supreme example of this position. Li v. Yellow
Cab Co., 13
Cal. 3d 804 (1975).
- See Schedule 9, Constitutional Reform Act
2005, from the UK Office of Public Sector Information.
- 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).
- Osborne M. Reynolds, Jr., Local Government Law, 3rd
ed. (St. Paul: West, 2009), 33.
- 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).
- 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).
- Kinzie & Hart, 101.
- Norbert Reich, Understanding EU Law: Objectives, Principles
and Methods of Community Law (Antwerp: Intersentia, 2005),
- Ellen E. Beerworth, "Australia," 51-74, in International
Product Liability, vol. 1, ed. Christian Campbell (Salzburg:
Yorkhill Law Publishing, 2006), 52.
- Patricia L. Maclachlan, Consumer Politics in Postwar
Japan (New York: Columbia University Press, 2002), 226.
- Cardozo, Benjamin N. (1957). An Introduction to Law.
Cambridge: Harvard Law Review Association. (Chapters by eight
distinguished American judges).
- Hart, H.L.A. (1961). The Concept of Law. Oxford
University Press. (Classic text on "what is law?")
- Llewellyn, Karl N. (1986). "The Bramble Bush," in Karl
N. Llewellyn on Legal Realism. Birmingham, AL: Legal
Classics Library. (Classic introductory text on the nature of
- Nizer, Louis (1978). My Life in Court. New York: Jove.
(Popular description of a lawyer's practice).
- Pound, Roscoe (1997). Social Control Through Law. New
Brunswick, NJ: Transaction Publishers. (Nature of law and its role
- Schwartz, Bernard (1974). The Law in America. New
York: American Heritage Publishing Co. (Evolution of American legal
institutions since 1790).