Foundations of American law.

During America’s colonial period, most of the English common law tradition, and many of the
English statutes, became firmly entrenched, though modified to some extent in accordance with the
religious and cultural beliefs of the colonists. At independence, the basic legal system did not
change. For the most part the new country simply continued to follow English law.
There was of course one big difference. The U.S. Constitution was ratified in 1789 and neither the
laws of Parliament nor the edicts of George the III had any further power in the new United States.
The constitution became the foundation on which our legal house was built, and both the law
inherited from England and that enacted by Congress and state legislatures eventually had to either
find support in this foundation or be discarded.
In the past 200-plus years of American history the English common law (case by case) tradition has
been modified somewhat. Specifically, there has been an increased reliance on statutes and
administrative regulations to make new law and codify principles developed by the case law.
Especially since the New Deal era of the 1930’s, new federal and state administrative agencies have
popped up at a rapid rate. Most of these agencies have the authority (within certain prescribed limits)
to make rules that have the force of statutes. Many of them also have the power to judge disputes
that arise under these rules.
Still, despite the increasing importance of these other sources of law, many areas of our law still
consist almost solely of court decisions and thus follow the old English common law system, as
practiced by American courts. The common law continues to be important even when a statute is
involved because the courts of this country are empowered to interpret statutes when a dispute arises
as to their meaning. As well as using other interpretative techniques, a judge will look at earlier
cases to see how they have interpreted the statute and will apply the prevailing interpretation unless
she feels it is wrong or clearly doesn’t apply to the current dispute.
The courts whose decisions are published and thus become part of the common law are almost
always appellate, not trial courts. Trials are for determining facts. In other words, it’s usually a jury
that decides who did it while the legal consequences of the act are left to the judge. If the verdict is
appealed to an appellate court, the appellate judges (there is no jury) generally review the law that
was applied by the trial court judge and only in very rare instances touch the factual findings of the
jury.
The point we’re making is simple. Although legislation and administrative regulations are more
important in our scheme of law than ever before, court interpretations are still extremely important to
an understanding of what the law is in the United States. In other words, court opinions in America,
as in England, serve as authority or “precedent” which is often binding and always important to
subsequent court decisions.
So far we have talked about America as if it were one political unit. For many reasons, it often seems
like this is true. However, it is important to remember that we have a federal system under which
fifty sovereign political entities (states) voluntarily banded together in a union and agreed to give the
federal government certain defined powers under the U.S. Constitution. All powers not expressly
granted are reserved to the states. The states in turn have divvied up their power among counties,
cities, and special districts.
The implications of this political structure for the study of law are clear. Laws are made at three
basic levels-federal, state and local. Operating at each of these levels are three sources of law:
legislatures, judges and executive officers (usually acting through administrative agencies).
Thus, there are federal courts, state courts, and adjudicative bodies established by local governments
(e.g., zoning variance appeal boards, police courts, etc). There are the federal legislature (Congress),
state legislatures and local Boards of Supervisors and City Councils. There are federal administrative
agencies (IRS, HHS, DOT, USDA, INS, and many others, more than we can conveniently count),
state administrative agencies, and local regulatory entities (planning commission, health department
and the rest of the offices at the city hall and county administrative building).
Each of these entities produces rules that prohibit or compel actions. Collectively we call these rules
the law.