The United States Legal System

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. – Preamble to the United States Constitution

The division of governmental authority into three branches of government legislative, executive, and judicial each with specified duties on which neither of the other branches can encroach. As a constitutional doctrine of checks and balances designed to protect the people against tyranny. 

The legislative branch passes statutes, the judicial branch issues opinions, and the executive branch drafts regulations. However, a constitution underpins each of the other sources and serves as the ultimate source of law. The constitutions also provide each branch a method by which it can create legal rules. Not only does each branch of government create its own source of law, but each separate jurisdiction within the U.S. possesses its own set of laws.

In the United States, the U.S. Constitution serves as the rule of recognition for the federal government. Also, state constitutions serve as the rules of recognition for their respective state governments. Under positivism, constitutions derive their authority from the will and acceptance of the people.

Knowing how the different pieces of the law interact with each other can make a huge importance on your local community.

Think of the United States legal system as a legally positivist system. Legal positivism is a theory of jurisprudence that essentially states that all law is human-made and is only valid in a state because people accept that it is.

–Wherever such a rule of recognition is accepted, both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation. – H.L.A. Hart, The Concept of Law

Part of Hart’s theory of legal positivism involves a “rule of recognition,” which alerts citizens of a jurisdiction to the validity of its laws.

You Have To Know The Rules To Play The Game

The United States of America employs a federal system of government.

The legal definition of a federal state is:

A composite state in which the sovereignty of the entire state is divided between the central or federal government and the local governments of the several constituent states; a union of states in which the control of the external relations of all the member states has been surrendered to a central government so that the only state that exists for international purposes is the one formed by the union.

A federal state has two separate governments that share law-making power, or sovereignty, over the same territory. Federal states differ from one another in precisely how the central and local governments share law-making power.

After the ratifying of the Articles of Confederation which remained in force following British recognition of American independence.

The constitution creates a strong federal government, it also specifically limits the application of federal law-making authority to specific topical competencies. As seen below in the standard order of authorities. State governments, while subject to federal supremacy in the enumerated competencies retain general sovereignty and so enjoy law-making authority over a wider range of topics.

The federal government possesses “enumerated powers,” or law-making powers specifically enumerated by the Constitution, while state governments possess “reserved powers,” or law-making powers over everything else. Both federal law and state law will apply throughout the same territory.

The District of Columbia possesses its own laws, as do other Federal territories. American Indian tribes, as “Domestic Dependent Nations,” enjoy a limited form of sovereignty.

U.S. evolved from a common ancestor (namely, the law of England), even if a jurisdiction’s set of laws does not directly apply to a legal problem, it may contain pieces that help different jurisdiction’s set that does apply.

The Constitution has limited the central government to enumerated powers. The federal government is broken into three distinct branches.

This type of government structure is called Separation of Powers, which is defined as:

The division of governmental authority into three branches of government—legislative, executive, and judicial—each with specified duties on which neither of the other branches can encroach; a constitutional doctrine of checks and balances designed to protect the people against tyranny.

The legislative branch passes statutes, the judicial branch issues opinions, and the executive branch drafts regulations.

Every state government in the U.S. features Separation of Powers. Subsequent to the creation of the federal government with the U.S. Constitution, each of the states in the United States adopted similar provisions in their own constitutions.

Separation of Powers as described by the various constitutions, the legislative branch creates laws in the form of statutes. Generally, to create a law, a legislator will introduce a bill into whatever legislative house she belongs; then once the bill receives an affirmative vote in each legislative house and the signature of the jurisdiction’s chief executive, it becomes an enacted law. Also, as on the federal level, the legislative branch, known as Congress, consists of the House of Representatives and the Senate. Bills that pass both houses to become enacted receive the designation “Public Laws.” The Government Publishing Office (GPO) publishes all Public Laws of the United States in a multi-volume set called the Statutes at Large. The GPO also divides the Public Laws into their constituent parts by topic and fits them into a topically organized publication of all federal laws in force called the United States Code.

Kentucky the legislature is called the General Assembly, which is comprised of the House of Representatives and the Senate. Bills that pass both houses become Acts, which researchers can find in chronological order in the Kentucky Acts or in the topically organized Kentucky Revised Statutes. Meanwhile, bills that pass both houses of the Texas Legislature become General Laws published in the Texas General Laws before being folded into one of a number of different codes named for the topics they cover.

Under Separation of Powers, the judicial branch takes on the role of the interpreter of laws. The judicial branch typically comprises several levels of courts, with a high court at the top, trial courts at the bottom, and one or more levels of intermediate appellate court in between, though the names of the various courts vary by jurisdiction. At the federal level, the United States Supreme Court acts as the high court, District Courts serve as the usual point of entry to the system, and Courts of Appeal (also sometimes called Circuit Courts) connect the two.

Under Separation of Powers the executive branch, which consists of a chief executive and various cabinet departments and agencies that report to the chief executive. At the federal level the President of the United States acts as the chief executive, and at the state level the Governor fills the same role. The chief executives will delegate the enforcement of different areas of law to different agencies. Often, an agency will need to provide specific rules in order to enforce a broad statute. Rules issued by agencies take the form of administrative regulations. In modern times, legislatures actually delegate regulation-making authority to executive branch agencies by statute, giving regulations the force of law. Lawyers generally regard them as the weakest of the sources of law. Because a legislature can remove the authority at any time.

In formal legal writing, the order of authorities refers to the sources which are used to validate claims made by the author of the paper.

The sources should be arranged according to their order of importance, in accordance with Bluebook Rule 1.4. 

Standard Order of Authorities – As Per Bluebook Rule 1.4

1.  Constitutions, in the following order –

    a)  U.S. Federal Constitution

    b)  U.S. state constitutions, alphabetically by state

    c)  Foreign, alphabetically by jurisdiction

    d)  Foundational documents of the United Nations, League of Nations, and European Union (in that order)

2.  Statutes, in the following order –

    a)  Federal

         1)  statutes in U.S.C., U.S.C.A., or U.S.C.S. (by U.S.C. title number, from lowest to highest)

         2)  statutes currently in force but not in one of the codes above (cite most recently enacted first and continue towards earliest). 

         3)  rules of evidence and procedure

         4)  repealed statutes (cite most recently enacted first and continue towards earliest)

    b)  State (alphabetically by state)

         5)  statutes in current codification (by codification order)

         6)  statutes currently in force but not in current codification (cite most recently enacted first and continue towards earliest). 

         7)  rules of evidence and procedure

         8)  repealed statutes (cite most recently enacted first and continue towards earliest)

    c)  Foreign (alphabetically by jurisdiction)

         9)  codes or statutes in current codification (by order in codification)

         10) statutes currently in force but not in codes or current codification (cite most recently enacted first and continue towards earliest). 

         11) repealed statutes (cite most recently enacted first and continue towards earliest)

3.  Treaties and other international agreements –

     Cite most recently enacted first and continue towards earliest, except foundational documents of the United Nations,     League of Nations, and European Union.

     *  See 1(d) above for the foundational documents excluded here.

4.  Cases, in the following order –

    a)  Federal

         1)  U.S. Supreme Court

         2)  Courts of appeals, Emergency Court of Appeals, and Temporary Emergency Court of Appeals

         3)  Court of Claims, Court of Customs and Patent Appeals, and bankruptcy appellate panels

         4)  District courts, Judicial Panel on Multidistrict Litigation, and Court of International Trade (previously the Customs Court)

         5)  District bankruptcy courts, and Railroad Reorganization Court

         6)  Court of Federal Claims (previously, trial division of Court of Claims), Court of Appeals for the Armed              Forces (previously, Court of Military Appeals), and Tax Court (previously, Board of Tax Appeals)

         7)  administrative agencies (alphabetically by agency)

    b)  State

         8)  courts (alphabetically by state; then by rank within each state)

         9)  agencies (alphabetically by state; then alphabetically by agency within each state)

    c)  Foreign

         10) courts (alphabetically by jurisdiction; then by rank within each jurisdiction)

         11) agencies (alphabetically by jurisdiction; then alphabetically by agency with each jurisdiction)

    d)  International

         12) International Court of Justice, and Permanent Court of International Justice.

         13) Other international tribunals and arbitral panels (alphabetically by name)

    *  Arrange by courts issuing opinions; prior and subsequent history is irrelevant.

    **  Multiple cases from the same court?  Cite most recent decision first and continue towards oldest.

    ***  For rule above, all U.S. Circuit Courts of Appeals and federal district courts are treated as one court

5.  Legislative materials, in the following order –

    a)  Bills and resolutions

    b)  Committee hearings

    c)  Reports, documents, and committee prints

    d)  Floor debates

    *  Multiple sources of one type?  Cite the most recent first and continue towards oldest.

6.  Administrative and executive materials, in the following order –

    a)  Federal

         1.  Executive Orders

         2.  Current Treasury Regulations, and proposed Treasury Regulations.

         3.  All other regulations currently in force (by C.F.R. title number, from lowest to highest)

         4.  Proposed rules not yet in force (by C.F.R. number as above, if available.  If not, by date of proposal, with most recent first). 

         5.  All repealed materials (by date of enactment, with most recent first).

    b)  State

         6.  All state materials alphabetically by state.  Within each state, materials currently in force before those repealed. Within those categories, cite most recently enacted and continue towards earliest.

    c)  Foreign

         7.  All foreign materials alphabetically by jurisdiction.  Within each jurisdiction, materials currently in force before those repealed.  Within those categories, cite most recently enacted and continue towards earliest. 

7.  Intergovernmental organizations’ resolutions, decisions, and regulations, in the following order –

    a)  United Nations and League of Nations.  Within those organizations, by issuing body: General Assembly, then Security Council, then all other bodies in alphabetical order.  Within each body, cite most recent source first and continue towards oldest.

    b)  Other organizations (alphabetically by name)

8.  Records, briefs, and petitions –

     Arrange documents in the order listed.  Within each type of document, arrange by the court where filed; use the order of     courts given in Section 4 (“Cases”) above. 

9.  Secondary materials, in the following order –

    a)  Uniform codes, model codes, and restatements (in that order, and with most recent of each type first, continuing towards oldest)    b)  Books, pamphlets, and shorter works in a collection of works by a single author (alphabetically by author’s last name; if not available, by first word of title)     c)  Journal work not written by students, including forthcoming works and shorter works in a collection of works by multiple authors (alphabetically by author’s last name)

    d)  Book reviews not written by students (alphabetically by reviewer’s last name)

    e)  Student-written material from law reviews and journals, including book reviews (alphabetically by author’s last name; if not available, by first word of title; if no title either, by the periodical’s name as abbreviated in citation) 

    f)  Annotations (most recent first and continuing towards oldest)

    g)  Magazine and newspaper articles (alphabetically by author’s last name; if not available, by first word of title)

    h)  Working papers (alphabetically by author’s last name; if not available, by first word of title)

    i)   Unpublished materials that are not forthcoming (alphabetically by author’s last name; if not available, by first word of         title    j)  Electronic sources, including material from the Internet (alphabetically by author’s last name; if not available, by first        word of title)

    *  Whenever alphabetizing, use only the last name of the first author listed; if not available, proceed immediately to title.

10.  Cross-references to author’s own material

      If author of the work being edited refers to own material in text or footnotes, this citation will take lowest precedence after any given signal.