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TOPIC 2 – AN INTRODUCTION TO THE UK AND UNITED STATES LEGAL SYSTEMS

Vocabulary
• Legal family: a set of legal systems. Group of national of legal systems that have similar features.
• Legal scholars: law professors, authors of legal books and articles (doctrina).
• Lay judges: non-professional judges (jueces legos, jueces de paz).
• Public officials: government employees (funcionarios).
• To seek legal redress: to ask for a remedy.
• To be binding: to be obligatory, to be compulsive or mandatory (vinculante).
• Wrong: something contrary to the law, something unlawful (ilícito).
• Fair / Unfair: referred to the idea of justice.
• Inquiry: research, investigation (investigación judicial).
• To sue loyalty: make a formal promise (prestar juramento).
• To overrule: to rule against, or to prevail over (desautorizar).
• Chancellor: a person who gives advice.

1. Classification of legal systems into legal families.


One approach in attempting to divide and classify legal systems of the world has been to place them into legal
families or legal tradition. A legal tradition has been defined as a set of deeply rooted historically
conditioned attitudes about the nature of the law, the role of the law in the society and the political
ideology, the organization and operation of a legal system. A legal tradition puts the legal system into
cultural perspective.
In the last century, the legal scholars and experts tried to join different national systems, into different family
systems, that were similar to each other. They use for that several criteria in order to stablish these
classifications. For instance, some of them place the attention on the:
• Race.
• Language.
• Culture.
• Contents of laws.
• Ideology, philosophy, conceptions of justice and legal technique.
• Historical origins.
• Juristic style: historical background and development, mode of legal thinking, distinctive institutions,
sources of law, ideology.

In 1950, substantive content of laws was used as a criteria by ARMINJON / NOLDE / W OLF to classify legal
systems into the following legal family. The classification of the legal families was seven:
- French
- German
- Nordic
- English

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- Russian
- Islamic
- Hindu groups

In 1964, DAVID used the conception of justice and legal technique as a criteria to distinguish among this
following different legal families:
- Romano-Germanic subgroup.
- Anglo-Saxon subgroup.
- Soviet Law.
- Muslim Law.
- Hindu Law.
- Chinese Law.

In 1969-1971, ZWEIGERT / KÖTZ used the juristic style to distinguish the following legal systems:
- Roman family
- German family
- Anglo-American family
- Scandinavian family
- Socialist family
- Religious family (Muslim and Hindu law)
- Family of the laws of the Far East (China and Japan).

The authors reach that the families were very similar.

Nowadays, the most important family law are:


• Common Law family
• Civil Law family
o Roman
o German
o Scandinavian
• Socialist Family
• Religious family
• Family of Far East (China and Japan).

Real problems and practical difficulties arise only if there is disagreement over the classificatory criteria that
would assist in determining which law to apply to a given situation. Most legal systems in the world today
possess characteristics that are predominantly identified with one or more of legal families. One weakness of
the legal families approach is its narrow cultural focus since the families are based on Western legal
prototypes and the current Europeanisation process serves only to reinforce this criticism. Another criticism
levelled at the legal families approach is its focus on private law tot he neglect of constitutional law,
administrative law and criminal law. Furthermore, there aret he hybrid or mixed legal System with more than
one legal tradition co-existing with one jurisdiction.

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However, there are some advantages in using the legal family template. The legal families approach has
provided a perfectly serviceable construct for making a prima facie classification of the world’s legal systems,
which has made it possible for people new to comparative legal studies to form immediately a global map of
where they might expect to find different kinds of law and why.

2. Origins and evolution of the Common Law. History.


There are two major legal traditions in Europe today. The first is the civil law tradition, which embraces most
of the countries of continental Europe. The second one is the common law tradition where England, Wales
and Ireland fall with. What differentiates these two traditions is primarily history.

There are two reasons why England remained largely immune to the civilian scholarship and to the Roman
and canon law:
• Because England developed its own particular legal institutions at an early stage (11th – 14th
centuries).
• Because of the absence of university law faculties teaching the common law.

The rediscovery of Roman law in the 11th century have risen to a body of academic doctors in Italy who
devoted themselves to commenting upon the Roman texts. These academics – Glossators – were to lay the
foundation for a legal revolution in continental Europe.
In Britain it was quite different, because the feudalism provided the context for a development of a customary
system that was to resist Roman law not just in substance but also in the methodology. The tradition of the
common law it is associated with a number of institutions which developed out of the historical facts of their
time and which did not necessarily conform to any rational “plan”.

We are to focus on the origin and the evolution of the Common Law. The origin of the Common Law took
place the 11th Century, so we can consider the Common Law tradition emerges in England during the
Middle Ages.

In the 1st century BC the romans conquered the south of England. The reception had influence on
England, so the Roman law was received by the England.

By the 5th century AC, the romans abandoned England, because England was conquered by the Germans
tribes.

Also, Germans tribes (Angles, Saxons) settled in England. This German people created the English law
based in Germanic customs and Germanic traditions, which were considered very simple, very
rudimental.

One aspect of this system was that the settlement of disputes was conducted on a purely local level, each
region acting independently and without knowledge of what the others were doing. The rights and
obligations of individuals flowed from the nature of their personal status within the system.

When the king sought to establish a more important central power, he ran into serious conflict with the
local authorities. Nevertheless, in his quality of sovereign, judge and source of justice, and to discharge his

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responsibility for the preservation of peace, he established his own courts with judges who went on
circuit throughout the entire country. Even though these were not courts of general jurisdiction, but only
competent in certain kinds of cases, they were not well received at first. So, by means of their decisions they
created the first uniform rules and the fist basis of uniformity in the legal order, by establishing general
norms which were common throughout the whole country.

In the end of the 8th century AC, the Danish Vikings attacked England, so they were Germanic people
coming from Denmark, in general, Scandinavia (the northern). The Danish Vikings tried to conquer England,
however, this Anglo Saxon was able to win the Danish Vikings, and after the victory the kingdom was
divided into countries or shires, which was justice was administered by country (local) courts.

This victory didn’t stop the attacks of the Vikings, and this is why in the year 1013, the Danish Vikings, finally,
conquered, invaded England, which was very brief. In the year 1066 the England is conquered by the
Normans (region of the north of France). So, England was occupied by William, Duke of Normandy, the
Conqueror. So, the first Norman king in England was William, Duke of Normandy, the Conqueror.

After the Norman Conquest of Britain (1066), medieval kings began to centralize power and establish new
institutions of both royal authority and justice. King HENRY II established a unified system of law “common”
to the entire country (as opposed to local law, which varied from place to place).

The Common Law, initially, was only applied by the Central Royal Court, placed in Westminster. Then it
expanded by sending royal judges throughout the country. Later on, the King decided to send Royal Judges
from his central court to solve conflicts throughout the whole country, that’s how the common law got
expanded.

The instinct of the early common law judges was to keep their decisions as consistent as possible
(principle of stare decisis). The small number of common law judges and their central location in Westminster
made it possible to maintain some consistency. In addition, lawyers would assist by reminding the judges of
prior cases. This primitive system of precedent later gave way to a more sophisticated one once reliable
reports of decisions became available.

The crown also established new forms of legal actions through a system of writs or royal orders that provided
specific remedies for specific wrongs: the common law was subordinated to the power of the King. So if you
wanted to get access to a common law remedy, you had to present yourself in front of one of the
representatives of the King. These representatives were known as Writs.

Initially, the common law recognised just some remedies, a very limited of writs – for example, for trespass
or breach of contract and things like that –. If the issue was included in a writ, the writ writers allowed the case
to take place. But if a writ was not available for a claim, the person has no way to get a common law remedy,
so, we can say that it was a very rigid system, so this system evolved to the Court of Equity or Court of
Chancery. In order to give flexibility, it was created some new writs, available, if and only if, these writs were
not contrary to the previous writs.

The prevalence of the loyal courts of the local courts took place for the following reason: because of
the proceedings of the common law were considered more reliable that German customs. This prevalence

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didn’t like royal barons and this is why in 1215 the King JOHN LACKLAND signed the Magna Carta to limit the
power of the King.

In the 14th century, the system of writs became highly formalized and too rigid to achieve justice (due to
there were no writs) and a new court was created: Court of Equity or Court of Chancery. The Court of
Chancery only had jurisdiction over civil law cases, where the common law remedy was not available and
also, or when the solution given by the common law remedy was considered unfair. It applied principles of
equity based on many sources (Roman Law, canonic law, natural law…).

Both, coexisted during centuries, and during this centuries there were some politic disputes in order to
determine which system was the best legal system. This why finally, in 1615 it was established that if there
was a conflict, a contradiction between common law and equity: the equity prevails.

Common law and equity were applied within British colonies across continents.

Courts of law and Courts of equity functioned separately until they were merged by Judicature Acts of
1873 and 1875. However, some US States maintain separate courts of equity.

In 2005 there was an important reform, the Lord Chancellor was a member of the executive, of the legislative
body, and also the judicially. This constitutional reform act intended to officially recognise that the
judicially was independent from the other powers. And this was why the Lord Chancellor was replaced by
Lord Chief Justice, and the President and the judiciary system of England and Wales (Presidente del Consejo
General del Poder Judicial, in Spain).

In the US, some states also merged the common law courts and the equity courts, however, it is possible to
find today some states that have this courts separated: Missisipi, Teneesse.

Questions of the video:


1) The Common law is judges made law.
2) Equity is a system based on conscience and (Roman law, natural law, canonic law, religious law).
3) An injunction is a court order that a party must or must do something. TRUE
4) What is the ultimate domestic source of English law? Statute.

3. Most important differences from the Common Law and the Civil Law.

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To sum up:
• Civil law covers the continental Europe, countries that receive the civil law by the colonization by the
European countries, and also some places that decided to reform the legal system by following the
model of European countries.
• Common Law covers most part of US states, Canada, and also colonies of the British Empire.
• Countries that receive the influence of the common and civil law, and have a mix of them.

I) Differences between the civil law and the common law.

a) Origin and scope of application.


• CIVIL LAW. System of law that emerged in continental Europe beginning in the Middle Ages.
Continental Europe, countries which received the civil law tradition as former colonies of European
imperial powers and other countries (for example, Russia) that reformed their legal systems in the
19th and 20th centuries.

• COMMON LAW. System of law that emerged in England beginning in the Middle Ages. England,
Wales, Ireland, almost all States of US, most part of Canada, most countries which received the
common law tradition as former colonies of the British Empire.
• HYBRID OR MIXED SYSTEMS. Scotland, Quebec, The Seychelles, South Africa, Louisiana, Israel
etc.

b) Sources of law.
There are some material differences of the common law and civil law. The most important differences refer to
the source of the law. Common law is a no codified legal system, by civil law is a codified one.

• CIVIL LAW.
o Based on codes (collections of laws of a country or laws related to a particular subject) and
statutes (written laws enacted by a legislature).
o Legislation is the most important source of law
o Codes and statutes provides general principles.

• COMMON LAW.
o Based on precedents or case law (the law as defined by previously decided cases) and
statutes (written laws enacted by a legislature).
▪ When a Court decided a particular case, its decision was not only the law for the parties,
but had to be followed in future cases of the same sort, thereby becoming a part of the
general or common law. Thus, the common law, as a body of law, consisted of all the

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rules that could be generalized out of judicial decisions. New problems brought new
cases, ad these enriched the rules of the common law.
▪ Actually, the common law was conceived as being all-inclusive and complete; if a rule had
not already been formulated, it was the judge’s responsibility to declare it. Thus, judicial
decisions were both the source and the proof of the law, pronounced in connection with
actual cases.
▪ But what gave stability and continuity to this system was the doctrine of “precedent”.
o Precedents are the most important source of law.
▪ PRECEDENTS. As judicial decisions that have already been made and that may serve as
authoritative example in future similar cases. They are maintained over time through the
records of the courts as well as documented in collections of case law known as year-
books and reports.
▪ Despite obviously in common law there is also legislation.
o Statutes provide more specific and detailed rules.

c) Stability / Flexibility of the system.


• CIVIL LAW. Stable system.
• COMMON LAW. Flexible system.

d) Role and characteristics of the judges, jury and form of court decisions. Importance of precedents.
• CIVIL LAW.
o Precedents are not legally binding.
o Role of judges:
▪ Courts do not create the law but only apply it and interpret it: passive role in the creation
of law.
▪ Judicial inquiry: inquisitorial process. Judges take an active role in trial and legal
representatives and parties act only to aid and collaborate with the judicial inquiry.
o Training of judges: particular training (official exam).
o Jury: exceptional use.
o Form of courts decisions: judges are anonymous. Resolutions are shorter.

• COMMON LAW.
o Precedents are binding.
o Role of judges:
▪ The courts are given the main task in creating the law: active role in the creation of
law.
▪ Inquiry made by parties: adversarial process. Trials are seen as a battle between two
opposing sides, and the role of the judge is to act as a sort of passive referee. The work of
collecting evidence and preparing to present it to the court is accomplished by the litigants
and their attorneys. The essential role of the judge is to structure and regulate the

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development of issues by the parties and to make sure that law is followed ad that
fairness is achieved.
o Training of judges: no particular training (lawyers with experience and reputation).
o Jury: important role in private law cases.
o Form of the court decisions: judges are identified in opinions, that’s why the resolutions are
longer (every resolution contains the point of view of each judge).

e) Legal education / Research.


• CIVIL LAW. Based on legislation, codification, and doctrinal materials.
• COMMON LAW. Based on precedents.

II) Doctrine of stare decisis (Let the decision stand).


In common law legal systems the doctrine of stare decisis means that precedents are binding for judges, in
this case, when solving similar cases. The doctrine of stare decisis means that the principles of law – ratio
decidendi – established in earlier cases should be accepted as authoritative in similar subsequent cases.

Ratio decidendi or rationale for a decision:


▪ Legal principle upon which the decision in a specific case is founded.
▪ As a general rule, it is binding in later cases.

Obiter dictum:
▪ Statement by a judge expressing an opinion and included with, but not essential to, an opinion
resolving a case before the court.
▪ As a general rule, it is not binding in later cases.

Once a point had been decided, the same result had to be reached for the same problem; the judge was
obliged to “follow” the earlier decision, the precedent. However, since courts are jealous of their prerogatives,
the rule of precedent was applied only to the “ratio decidendi” or the exact point which was
indispensable and necessary to reach a decision. Non-essential point was classified as “obiter dicta” and
were not binding.

III) Effects of the doctrine of stare decisis.


Remember that this doctrine has a double effect:
• According to the vertical effect of this doctrine, judges of lower courts are bound by the decisions
of higher courts, even if the lower court considers that the decision is not right.
• According to the horizontal effect, precedents are binding for current decisions of the court that
rendered the precedent.
o Remember an exception of this horizontal in England, established in England in 1966. In 1966
the House of Lords established that only the judges of the highest score were able to separate
from the previous court decisions – precedents – if they involve and unfair solution for specific
case. Also, in common law the judges are considered the creators of the law.

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o The Practice Statement [1966] 1 WLR 1234 stated that “(…) too rigid adherence to precedent
may lead to injustice in a particular case and also unduly restrict the proper development of the
law. [Their Lordships] propose, therefore, to modify their present practice and, while treating
former decisions of this House as normally binding, to depart from a previous decision when
it appears right to do so”.

4. Overview of the US and UK Court systems.

I) UK Court system.
Initially, English procedure was an oral procedure, and there were no judges, there were jurists who were
ordinary people. Today, we can say that the jurists are also an important element in the UK, but especially in
the US.

At the beginning of the 19th century, the English courts were considered medieval, feudal, so they had
several defects. The most important were that there were two legal systems: common law and equity. Also
there were three common law courts with equivalence jurisdiction. There was also a lot of delay in the Court of
Chancery (equity), and there was not a coordinated appeal system in the UK Court system.

To sum up:
• There were two legal systems: common law and equity.
• There were three common law courts that have very similar jurisdiction.
• There was a lot of delay in the Court of Chancery (equity).
• There was not an organised appeal system in the UK Court system.

Because of these defects, in the 19th and 20th century, there were some reforms in the UK legal system. The
most important ones were the following:

(1) 1830 / 1851: some kind of Court of appeal was established in both: equity and common law systems.
(2) 1846: creation of a new system of local county courts.
(3) 1852: the Common Law Procedure Act abolished the system of writs and moreover the Act also
merged the common law and the equity remedies.
(4) 1873 / 1875: the Judicature Acts were made, and established a model of a Supreme Court in the
UK, and this model of a Supreme Court works in a double level:

(a) In the first level there was a High Court. This one included the common law courts of the Curia
Regis (Exchequer, King’s Bench, Common Pleas). Also included the Court of Chancery (the one
that apply the equity), also the Court of Admiralty (a court different from the common law courts
that dealt with commercial issues), and the High Court also included the Church Court: this High
Court merged all this courts.

The High Court was divided in three divisions:


▪ King’s Bench division: common law.
▪ Chancery division: equity law.

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▪ Private divorce and Admiralty division, which is also known as Family division.

(b) In the second level there was the Court of Appeal. Initially was the only Appeal Court in UK.
But there was a change of government (1873 / 1875) and they decided to create another appeal
court: the House of Lords, which would be the highest court of appeal in the UK. Since 2005, the
House of Lords was replaced with the Supreme Court. Nowadays, is the highest court.

(5) 1997 / 1998: in the end of the 20th century there was a lot of delay, the judicial cost were high and
the judicial procedures were too complicated or complex, so, some civil procedural rules were
pass by the Parliament in order to end with this problems. They stablished procedural tracks that
helped in two things: the complexity and the amount of the claim.

So:
▪ For claims under 5000 pounds or 1000 pounds if they refer to personal injuries, there is a
small claims track procedure (simple and fast) before a county court.
▪ For claims between 5000 and 25000 pounds there is a fast track procedure also before a
county court.
▪ For complex claims, there is a multi-track procedure before a county court or before a
high court.

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As in the Spanish legal system, the legal English system was organised as a pyramid.

Traditionally, English courts have been classified into different categories:


• A first distinction must be made on courts that deal with civil matters and courts that deal with
criminal matters. In these courts, we will focus only with the courts that deal with the civil matters.
• A second distinction must be made if they are considered inferior or superior courts. This
classification of both ideas: the first one depends on _______, and the second on depends on the
relationship between the lower courts and the higher courts.
• Finally, a third distinction must be made between the courts whose judgments are frequently
reported, and whose judgments aren’t frequently reported. Remember that only the highest court
(Appeal Court and Supreme judgments are regularly collected in legal book cases).

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To sum up, the Civil Courts are divided into:

1) Courts that deal primarily with civil matters:


• Magistrate’s courts
• The county court
• The High Court
• The Court of Appeal (Civil Division)
• The Supreme Court (formerly, House of Lords)

2) Courts that deal with civil matters:


• Relationships between individual people (contracts, family law, torts).
• Relationships between individuals and state (disputes about tax, actions of a local authority or
other public body).

The Criminal Courts are divided into:

1) Courts that deal primarily with crime matters:


• Magistrate’s courts
• Crown Court
• Court of Appeal (Criminal Division)

2) Criminal Matters: Any breach of the criminal law.

We found the following types of courts:

1) Superior courts:
• Supreme Court
• Court of Appeal
• High Court
• Crown Courts
• Other: Judicial Committee of the Privy Council, Court of Protection.

2) Inferior Courts: They have limited powers and their work is subjected to judicial review by higher
courts:
• County Courts
• Magistrate’s Courts

3) Reported Courts: Courts whose decisions are regularly reported and therefore can contribute to
the development of law. Types of reports: general reports, commercial law reports, electronic
databases (Westlaw, Lexis Nexis):
• High Court
• Court of Appeal

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• Supreme Court
4) Non-reported courts: Courts where decisions are rarely reported:
• Magistrate’s Court
• County Courts
• Crown Courts.

Now, we are going to view some characteristics of the Civil Courts in the UK.

Magistrates’ Courts:
• Inferior courts whose decisions are rarely reported.
• They are distributed through the country.
• As a general rule, magistrates are not trained lawyers (lay people), unpaid and part-time.
• Jurisdiction: family cases.
• The decisions of the Magistrate’s Court are appealed before the Family division of the High Court.

County Court:
• Inferior courts whose decisions are rarely reported.
• They are distributed through the country.
• District judges are full time, paid members of the judiciary with a legal background.
• They hear the vast majority of civil cases, so they deal with the major civil cases: contracts, torts,
property, not family cases.
• Appeals are heard by the Court of Appeal, except for cases of bankruptcy, which are heard by the
High Court

High Court:
• Superior court whose decisions are frequently reported.
• To qualify as a High Court judge, they must have been an advocate lawyer for 7 years, or a circuit
judge for 2 years.
• Appellate and original jurisdiction.
• Three Divisions and Divisional Courts within each Division, which exercise most of the High Court’s
appellate jurisdiction
o Chancery Division:
▪ Composition: Chancellor of the High Court and 18 judges;
▪ Jurisdiction: equity and trusts, partnership, bankruptcy, companies, patents, among
others;
▪ Divisional Court hears appeals in certain bankruptcy and land registration cases.

o Family Division:
▪ Composition: President and 19 judges
▪ Jurisdiction (at first instance or appeals from County Courts): matrimonial proceedings,
proceedings relating to children.
▪ Divisional Court hears appeals from Magistrates’ Courts.

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o Queen’s Bench Division:
▪ Composition: Lord Chief Justice and 68 judges
▪ Jurisdiction: contracts, torts, commercial affairs, naval affairs, judicial review
▪ Small civil appellate jurisdiction.

• Depending on the type of case, appeals are heard by the Court of Appeal or the Supreme Court

Court of Appeal (there is only one court of appeal placed in London):


• Superior court whose decisions are frequently reported.
• Judges sitting in the Court of Appeal are the Presidents of the various divisions of the High Court,
plus de Lord Chief Justice, the President of the civil division of the Court of Appeal, the Master of the
Rolls and the Lord Justices of Appeal
• Only appellate jurisdictions
• It is bound by its own previous decisions, according to the doctrine of the stare of decisis.
• Two Divisions: Criminal Division and Civil Division a. Civil Division:
o General jurisdiction
o Appeals from the High Court and certain cases from county courts
• Appeals are heard by the Supreme Court.

Supreme Court (which is also placed in London today, is the highest court in the UK):
• Composition: 12 Justices
• Superior court whose decisions are frequently reported
• Final appellate court
• It is not bound by its own previous decisions (see supra Practice Statement of 1966). Since 1966,
judges of the Supreme Court can separate from precedents if this is necessary to find a solution for
specific cases.
• Jurisdiction:
o General jurisdiction;
o Appeals from the Court of Appeal and, in exceptional circumstances, from the High Court.

European Court of Justice.


Finally, regarding the UK Court System, we can say that there is not a Constitutional Court (separated like in
the Spanish legal system), so the questions of constitutionality will be solved by the ordinary courts.

• In 1973, UK entered into the European Community (today European Union)


• At least, UK is bound by judgments of European Court of Justice (ECJ): judgments of ECJ
overrule those of UK national courts (supranational justice).
• Jurisdiction:
o Actions brought by EU institutions, national governments or individuals to determine
whether any measures adopted, or rights adopted, by the EU Commission, EU Council or any
national government are compatible with EC Treaty.

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o Requests of the national courts to interpret points of EU law. So, this is not an Appeal
court; it can give ruling of the interpretation of the European law.

II) US Court systems.


The US Court System is divided into the federal (the national court system) and the 50 State court system of
all the 50 US states. Federal (national) court system is established by art. III of the US Constitution (1789),
and the State court systems of each of the 50 States are established by their State Constitution.

The organisation of both court systems is very similar of the UK:


- The federal or national court system, the US district courts are the lowers courts and they have
original jurisdiction. There are some special courts that deal with some special cases.
- The US courts of appeals are intermediate level and they have appellate jurisdiction.

Federal Court System: three levels of courts:

(1) US District Courts:


94 trial courts: Original jurisdiction (civil and criminal cases).

Trial courts with specialized jurisdiction:


• Bankruptcy Courts: insolvency cases, except criminal issues;
• Court of International Trade: international trade and custom issues;
• Court of Federal Claims: federal contracts, taking of private property by the federal government and
other monetary claims against the federal government;
• Tax Court: federal taxes
• Court of Military Appeals

Trial court proceedings are conducted by a single judge.

In the Federal court system the US district court is the lower court. Despite there are specific courts leading
with very specific cases such as bankruptcy.

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(2) US Courts of Appeals:
12 regional Courts of Appeal.
• Appellate jurisdiction
• They affirm or reverse lower court decisions
• They do not review facts, but mistakes of law

Court of Appeals for the Federal Circuit:


• Appeals in specialized cases:
o Cases involving patent laws
o Cases decided by the Court of International Trade and the Court of Federal Claims
• As a general rule, panels of three judges.
• Courts of appeal are the intermediate courts.

(3) US Supreme Court: Highest court in the federal court system.


It is located in Washington DC.

9 justices:
- Chief Justice (president) and 8 associate justices
- They hear cases in banc: all 9 justices sit together and make final decisions in all cases

Original jurisdiction: cases affecting ambassadors, consuls and other foreign public ministers, and cases in
which a State shall be a party

Appellate jurisdiction: parties or State Supreme Courts can petition the US Supreme Court to hear their case
by means of a petition for a writ of certiorari. Certiorari means “bring up the record”.

• Writ of certiorari: in order to get a judgment of a supreme court. By this writ the Supreme Court ask
lower courts to bring up the case to the supreme court in order to review it. (50.000 a year for
certiorari, but only succeeding 2% of them).
o Certiorari: to bring up the record: elevar el expediente.

• Certiorari will be granted only when:


o A federal court of appeal or a state Supreme Court has decided a federal law question in conflict
with another federal court of appeal or state supreme court.
o A state court or a US court of appeals has decided an important question of federal law that has
not been, but should be, settled by the US Supreme Court.
o A state court or a US court of appeals or has decided an important federal question in a way that
conflicts with relevant decisions of the US Supreme Court

Discretionary jurisdiction (it decides whether to hear a case or not). It usually hears the following cases:
• Cases where a split of opinion among the courts of appeals exists.
• Cases where an important constitutional question exists.
• Cases where an issue of federal law needs to be clarified.

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Supreme Court is the highest court, it has original jurisdiction in some cases, such in the ones where are
involved ambassadors, or one State of the UUSS is involved. Despite the more important part of his business
is his appeal jurisdiction: writ of certiorari.

These two different court systems – Federal and State- are parallels, and they are used depending on the
topic of the case dealed.

Federal courts have jurisdiction over 2 types of cases:


o where 2 parties live in different and states, and if the cases are worth over 75.000 dollars.
o cases involving us constitution
o federal laws
o IITT
o Public officials
o intellectual property…

The rest of cases will be resolved my State courts: involving states constitutions, involving states law,
cases involving private laws (property, family, contracts, commercial…).

The Supreme Court judgements can only be reviewed by a Constitutional modification or by a new judgement
emitted by them.

State Court System:


Most State Court Systems are made up of:
• Trial Courts:
o Trial Courts of Limited Jurisdiction (specific types of cases: family court, traffic court, small claims
court, etc.)
o Trial Courts of General Jurisdiction (jurisdiction over major civil disputes and all serious criminal
offenses, called felonies). The most common names for these courts are Superior Court or
Circuit Court though in some states they are called District Courts (strangely enough, in New
York they are called Supreme Court, while the highest court is called Court of Appeals).
• Intermediate Appellate Courts (in some States): Different names: Circuit Courts, Superior Courts,
Courts of Common Pleas, Supreme Courts: names changing depending on the State. Trial / appeal
courts may change their names among the different states of the country.
• Highest State Courts: Different names: Supreme Courts, Courts of Appeal, etc.

State appellate court of last resort is the final arbiter of the meaning and application of state law. Federal
Courts cannot interpret State Constitutions

Interpretation of the US Constitution or issues of federal law by State Courts is subject to review by the US
Supreme Court.

Federal and State Courts:


1) Federal Courts:

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• Cases in which parties are residents of different States and the amount in question exceeds
75.000 dollars;
• Federal questions, id est, cases that arise under the US Constitution, federal law, treaties;
• Cases in which 2 or more States are parties
• Cases involving public officials
• Cases on bankruptcy
• Cases on patents
• Cases on trademark
• Cases on antitrust...

2) State Courts: jurisdiction over cases which do not fall within the exclusive jurisdiction of Federal
Courts
• Cases involving State constitutions or laws, cases on torts, contracts, family law, real property,
corporate law, traffic regulation...

In some cases, Federal and State Courts have concurrent jurisdiction. In these cases, the plaintiff will have to
choose between the Federal Court System and the States Court System. Moreover, in these cases the US
Federal Supreme Court has to review the decision. These cases are:
o Civil rights claims;
o Environmental claims;
o Class actions

KEY CONCEPTS:
- Through judicial interpretation of the 14th Amendment of the U.S. Constitution, most of the provisions
of the Federal Bill of Rights have become incorporated (or more applicable) to the states.
- State courts can interpret the U.S Constitution subject to final review by the US Supreme Court.
- Federal Courts cannot interpret State constitutions or state law.
- Judgements of the US Supreme Court regarding a constitutional issue can only be changed by a
constitutional amendment or subsequent decisions of the Court. IN ORDER TO MODIFY A US
SUPREME COURT INTERPRETATION OF THE US CONSTITUTION, IT IS ONLY POSSIBLE
o To modify US constitution.
o New ruling of the US Supreme Court on the same topic.

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