Chapter 4 Sources of American Law Chapter Outline

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Chapter 4

Sources of American Law

Chapter Outline

  1. Introduction

  2. The Framework of American Law

  3. Case Law and the Common Law Tradition

  4. Constitutional Law

  5. Statutory Law

  6. Administrative Law

  7. National and International Law

Chapter Objectives

After completing this chapter, you will know:

  • The meaning and relative importance in the American legal system of case law, constitutional law, statutory law, and administrative law

  • How English law influenced the development of the American legal system

  • What the common law tradition is and how it evolved

  • The difference between remedies at law and equitable remedies

  • Some of the terms that are commonly found in case law

  • How national law and international law differ and why these bodies of law sometimes guide judicial decision making in U.S. courts

Chapter Outline


A.The American legal system is based on English common 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.Case law and common law doctrines

2.The U.S. Constitution and the constitutions of the various states

3.Statutory Law, including laws passed by Congress, state legislatures, and local governing bodies

4.Regulations created by administrative agencies (such as the U.S. Food and Drug Administration)

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)


A.Common law arose from English common law tradition

1.Courts developed the common-law rules from the principles underlying judges’ decisions in actual legal controversies

2.Judges attempted to be consistent, and when possible, they based their decisions on the principles suggested by earlier cases or precedent

B.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

a)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

a)When there is no precedent on which to base a decision, or when there are conflicting precedents, courts may consider a number of factors such as fairness, social values, and public policy

C.Remedies at Law versus Remedies in Equity

1.Remedies at law are remedy awards of items of value, usually money

2.Remedies of equity are remedies founded in justice and fair dealing, when no remedy at law exists

3.Equitable Principles and Maxims

a)Judges are guided by so-called equitable principles and maxims when deciding whether to grant equitable remedies

(1)Whoever seeks equity must do equity. (Anyone who wishes to be treated fairly must treat others fairly.)
(2)One who seeks the aid of an equity court must come to the court with clean hands. (The plaintiff must have acted fairly and honestly.)
(3)Equity will not suffer a right to exist without a remedy. (Equitable relief will be awarded when there is a right to relief and there is no adequate legal remedy.)
(4)Equity regards substance rather than form. (Equity is more concerned with fairness and justice than with legal technicalities.)
(5)Equity aids the vigilant, not those who slumber on their rights. (Individuals who fail to assert their legal rights within a reasonable period of time will not be helped

4.Equitable Remedies

a)A number of equitable remedies are available:

(1)Specific Performance is a judge’s order to perform what was promised and is only available when the case is about a contract
(2)Injunction is a court order directing the defendant to do or to refrain from doing a particular act

5.The Merging of Law and Equity

a)Courts still distinguish between remedies at law and equitable remedies

D.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

E.Statutory Law and the Common Law

1.The common law governs all areas not covered by statutory law

2.When common law is codified, it means that a statute has been enacted

F.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)When attorneys and paralegals refer to a court decision, they give not only the title of the case but also the case citation, which indicates the reports or reporters in which the case can be found

2.The Parties

a)The parties to the lawsuit are the plaintiff, who initiates the lawsuit, and the defendant, against whom the lawsuit is brought

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.Decisions and Opinions

a)The opinion contains the court’s reasons for its decision, the rules of law that apply, and the judgment

b)There are four types of opinions:

(1)Unanimous Opinion—The opinion written for the entire court and all judges or justices unanimously agree
(2)Majority Opinion—An opinion where there is not a unanimous opinion, written to outline the views of the majority of the judges or justices deciding the case
(3)Concurring Opinion—An opinion that follows the majority opinion, where a judge or justice in the majority makes or emphasizes a point that was not made or emphasized in the majority opinion
(4)Dissenting Opinion—An opinion that follows the majority opinion, but written by a judge or justice in the minority who disagrees with the majority opinion

c)The Adversarial System of Justice

(1)The Goal Is to Win
(a)The goal of the attorney and paralegal is not so much to determine the truth as to win the case
(b)An attorney’s job is not to seek out or reveal the truth to judges, but to discover and present the strongest legal argument on behalf of his or her client
(2)Criticisms of the Adversarial System
(a)Many people criticize our adversarial system of justice, believing that it contributes to a lack of integrity in the legal profession
(b)Although the adversarial system is not perfect, it is fundamental to what we consider to be justice in the United States


A.The Federal Constitution

1.The U.S. Constitution, as amended, is the supreme law of the land

2.This principle is established by the Supremacy Clause of the U.S. Constitution

3.A law in violation of the U.S. Constitution will be declared unconstitutional and will not be enforced

4.The U.S. Constitution sets forth the powers of the three branches of the federal government and the relationship between the three branches

5.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 14th Amendment

6.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

(1)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

(1)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


A.Statutes are the laws enacted by legislative bodies at any level of government

B.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, but certain powers can only be exercised by the federal government

4.The Federal Government’s Constitutional Authority to Enact Laws

a)The powers given to the federal government are divided amongst the three branches of government

(1)The legislative branch, Congress, makes the laws
(2)The executive branch enforces the laws
(3)Judicial branch interprets the laws

5.The Expansion of National Powers under the Commerce Clause

a)Commerce Clause

(1)U.S. Supreme Court concluded that business within a state could also be regulated by the national government as long as the commerce substantially affected commerce involving more than one state
(2)Today, the commerce power is presumed to authorize the national government to regulate every commercial enterprise in the United States.

6.Federal Lawmaking Process

a)All laws passed by Congress start out as a bill that was introduced in either the House or the Senate or both

b)Bill is referred to a committee, where it must be passed by the committee before going to the full House or Senate

c)Both the House and Senate must pass the bill

d)If the bill passed by the House and Senate has differences, then those are resolved in a conference committee

C.State Statutes

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.Conflicts between Federal and State Laws

a)If a state statute is found to conflict with a federal statute, the state law is invalid

b)Concurrent powers are shared by the federal government and the states

4.The 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

D.Local Ordinances

1.An ordinance is an order, rule, or law passed by city or county government

2.Ordinances may not violate the U.S. Constitution, the state constitution, or federal or state law

E.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)


A.Administrative agencies are created by legislatures to administer and enforce legislation and to issue rules to implement the goals of specific legislation

1.Examples of federal administrative agencies are:

a)Environmental Protection Agency

b)Occupational Safety and Health Administration

c)Food and Drug Administration

B.Agency Creation

1.Congress creates an administrative agency by passing enabling legislation

2.The legislation states the name, composition, purpose and powers of the new agency


1.Rulemaking, creating or modifying rules or regulations is one of the major functions of an administrative agency

2.Steps of rulemaking

a)Agency gives public notice of the proposed rulemaking in the Federal Register

b)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

D.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

3.Most actions are resolved through negotiated settlements, but if there is no settlement, the case may go to adjudication


1.Trial-like hearing before an Administrative Law Judge (ALJ)

2.Procedures vary from agency to agency

3.The ALJ issues a decision on the case

4.Decision may be appealed to board or commission that governs the agency

5.Further appeals are to a federal court


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

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