The United States legal system is noted for its unique dual court structure, whereby the separate federal courts and the state courts preside over separate and sometimes overlapping court systems. This phenomenon is more remarkable in that there are instances where some legal matters are handled exclusively in the state courts and others in the federal courts, whereas others are resolved by both court systems. This situation is experienced due to the status of the federal system of government in the country. Both the national government and the fifty state governments are divided through executive, legislative and judicial braches. According to the U.S. Const. art. I, sec. 8 cl. 3, the national or federal government is the dominant power as per the Constitution and the state government exercise the powers not delegated to the national government (Library of Congress, 12). Any conflicts between the state and federal governments are administered through U.S. Const. art. VI., whereby federal laws and international treaties are confirmed as supreme to state and local laws hence avoiding contradiction in the jurisdiction.
Initially the U.S. legal system as inherited from the colonial times was limited in scope as the former colonialist distrusted the judicially. After the declaration of independence, the legislatures become more powerful adopting most of the executive powers. There was an ill-assorted attitude between the states legislature and the court system as the courts declared most of the legislations unconstitutional. According to David W. Neubauer, commenting on America’s Courts and the Criminal Justice System. “Out of this conflict over legislative and judicial power…the courts gradually emerged as an independent political institution,”. It was only with the influence of Supreme Court Chief Justice John Marshal that the court and central government gained more power. The courts also become instrument of policy making and early in his tenure he declared an act of Congress unconstitutional, in Marburg v. Madison (1803) (Friedman 25).
There are several sources of the laws of United States with the main reservoir being the Constitution, which is viewed as the ‘supreme law of the land’. The United States Constitution enacted in 1789 after the American independence from Britain created a three separate but equal branches of government, namely the Legislative (or Congress) , the Executive (the Presidency), and the Judiciary (the federal courts). The Constitution aimed at having each branch of government not getting too strong as opposed to the other. It also set up a number of strata of government at both federal or national level and self-governing state governments independent of each and city authorities. This form of government is federalism and has served the country ever since. The United States legal system was initially founded on its precursor the English Common Law before gradually emerging to be solely based on the country’s constitution; however, it still borrows from the English law.
It is the foundation of the U.S. government and similarly guarantees the rights and freedoms of all United States citizens. Any law perpetuating to contradict the tenets or principles of the Constitution is invariably declared illegal. The national/federal courts are mandated the exclusive power to interpret the Constitution while evaluating the legality of any federal or state laws. Even with the advent of the United Sates Constitution, each state has also its own state constitution governing local affairs but still subordinate to the federal constitution. According to Friedman, the U.S. Constitution has demarcated the boundaries between the federal and state law i.e. Constitutional supremacy Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding (Friedman, 3).
Other sources of law include the international treaties, which are made the government and are acknowledged as supreme subject to U.S. Constitution. When in conflict with federal statute, the more recently dated or enacted is observed. These treaties which are implemented through federal statutes include: the U.S. Treaties Service, Statues at Large, Treaties and other International Acts Series issued by State Department, and the United Nations Treaty Series. This are enacted through the federal statutes. The other source of laws are the federal executive organizations which can issue rules and regulations semi-legislative. These are legitimate federal regulations that forestall the state legislation but can only be enacted under a constitutional authority approved by congress. Executive orders issued by the president who enjoys wide-ranging powers as the head of the executive branch of the government are other source of laws. This published daily in the Federal Register, hence, ‘No person may be subject to any rule required to be published in the Federal Register and not so published’ [5 U.S.C. sec. 552(a)(1)] (Library of Congress).
The United States has legal system based on common law practiced in majority of states except Louisiana. This is a practice of applying previous precedents as the basis to the current cases. This as a practise affect even the areas where statuary laws are applicable mostly state courts e.g. property laws, contracts, and torts. The reported decisions of the courts are cited in these instances. These citations are similar for according to the court presiding from federal to state with references fixed accordingly to distinguish the presiding court. This uniform style of citation is known as Bluebook follow all law related publications which must include abbreviations for each state and federal courts, statutory anthology, and organizational rules.
Consisting of the Senate and the House of Representatives, the United States Congress is charged with enacting the federal laws under Article 1, Section 1 of the Constitution. These two chambers have equal powers and law-making functions. These laws are passed through a vote of the majority in each chamber of Congress and then forwarded to the President for assent. The Congress is also mandated enacting laws on taxation, duties, tariffs and international and state commerce regulation. The Senate draws two members from every state who serves a period of six years while the House of Representatives have 435 representatives serving two years. Standing Committees from each chamber draw up and set up the legislations. The drafts are introduced as bills which may originate from either chamber, except for bills on increasing revenue (U.S. Const. art. I, sec. 7) (Library of Congress).
The enactment or making of laws that govern the country are initiated when either a member of the House of Representatives or the U.S. Senate launch a bill. These bills are started through the House or Senate standing committees. These Bills are chronicled as per session of Congress with bills from House of Representatives initialled H.R. and Senate Bills S. The bill is then taken through the Committee stage for either amendment or approval. The bill is then debated in the floor of the chamber it was introduced and voted for. Then the bill is sent to the other chamber after passing the first chamber. In case of disagreement between the chambers, a joint committee of both chambers work out a compromise before returning for voting to both chambers. After being passed it is sent to the President who either, signs into law or does nothing and after ten days if Congress in session becomes law or if Congress adjourns within ten days doesn’t become a law or lastly, rejects the bill through a veto. This veto can however be rescinded by Congress with a two-thirds majority and it still becomes a law (Feltes 3).
The state legislatures operate similar procedures in enacting state laws and excepting Nebraska, each state operates two-tier chambers. Similarly the state governors have much just like the President Veto powers over laws passed by their state legislatures. However, unlike the national government, a majority of the states have provision for citizens’ proposals for new legislations. The citizens vote directly on specific projected laws while in some other states citizens compel the elected representatives to enact laws on particular issue. These initiatives are enforced by a petition through signatures of qualified electorate. The executive is the branch of the government which ensures compliance to the majority of the laws passed by the Congress and state legislatures. Other executive agencies issue rules, enact rules through the Administrative Procedure Act (APA). The president can issue executive orders and is only limited by the Constitution and federal statutes.
The judiciary arm of the government is charged with the authority to preside and rule on cases and disagreements between opposing parties which include the executive. By virtue of Stare Decisis doctrine, judicial rulings in the United States courts act obligatory precedent for consequent rulings. The appeals courts must also give a comprehensive printed opinion explaining the basis for the bench’s verdict as a guide to subordinate courts in managing similar cases. The courts therefore implement statutes while interpreting them and at the same time nullifying the unconstitutional ones while introducing new statutes in virgin areas.
According to Radcliffe and Piper, the four main functions of the courts are: enforcement e.g. in the Copyright Act whereby an infringement can give grounds for a suit to enforce of the statute; secondly, interpretation, again in the Copyright Act, a copyright created by an employee while in employment is owned by the employer. Thirdly, invalidation, e.g. courts can invalidate unconstitutional laws which conflict with the United States Constitution. Constitutional cases mainly involve the Bill of Rights in the first ten amendments. A classic case is in Roe v, Wade in which the Supreme Court invalidated the limitations of pregnant women right of privacy to seek abortion. Lastly, the functions of courts in creating common laws sometimes invoke the rights of privacy and publicity (Radcliffe and Piper, 2).
The United States judiciary operates (Placeholder, 6) several different types of courts in which both the federal and state courts have two levels of courts. These are the basic trial courts and the appellate superior courts. The cases are initially tried in the first tier trial court and when either party to the proceedings is dissatisfied with the ruling, appeals to the superior appellate court for restitution. The appellate courts main function is therefore to review the decisions of the lower trial courts. In the U.S. federal court, there are thirteen judicial circuits whereby eleven are numbered or contain more than one state. E.g. the 9th Circuit encompasses California, Oregon, Washington, Idaho, Alaska, Nevada, Arizona, and Hawaii. The Federal Circuit covers all appeals involving copyright and Claims Court cases. Each of the federal circuit is allocated one appellate court and they are variously known as Courts of Appeals or Circuit Courts. The Supreme Court is the final arbitrator in all the decisions of the Circuit Courts. A federal circuit is further divided into judicial districts (known as United States District Courts), which can be as small as one city or large as an entire state.
The federal courts rule over cases which cover federal statues or where the litigants reside in different states or a ‘diversity’ jurisdiction. The rest of the cases are filed before the state courts. Criminal cases involve violations of federal or state government criminal laws, e.g. murder and burglary cases. Defendants are sentenced either to jail or to pay fines. In civil cases, one party (plaintiff) files cases against another (defendant) requiring resolving dispute disagreements based on statutory law. E.g. damages over defamation article in a newspaper. Parties to a dispute can occasionally opt to settle their disagreement by using arbitration rather than through litigation. This can be resolved by using a neutral person rather than a judge or jury. It is faster and less expensive to both parties to the dispute. These cases mainly involve contracts and are resolved by the American Arbitration Association. In cases where a party seeks further appeals through the Supreme Court, the person must file a certiorari or a petition detailing reasons for the need to seek the courts decisions. The certiorari may be denied but if it proceeds the courts decision is final (Friedman, 80).
In civil cases the disputes mostly revolve over a complaint by one party against another over a wrongful action by the former and the ‘wronged’ action is recognized by law. The wronged party usually seeks to be compensated for the loss or damages mostly in form of funds to correct the anomaly. The defendant files an answering document replying to the allegations thereby defending his/her actions to the litigant. The court can either remedy the omission by the defendant by ordering compensation to the litigant or dismissing the case. When an accused or a litigant looses the case, they can opt to appeal the decision of the lower court. The appeal can then only be filed within the particular judicial circuit in which the trial was held. In the federal Court of Appeals, the court’s seeks any mistake or omission done by the lower court but does not issue a second appeal. In case of mistake, it’s referred back to the jury court for re-trial.
The legal system in the United States is mostly composed of lawyers who are judges, prosecutors and lawyers. The latter are the majority as they are employed in defending clients facing prosecution and in drafting contracts in non-judicial affairs. The numbers of lawyers practising outside the courtrooms are mainly the corporate lawyers where the majority draw agreements and draft pacts between parties or dish out professional legal advice in tax and corporate affairs. However, inevitably the trial or courtroom lawyers enjoy more public attention as they engage in open hostilities with each other in a battle of wits. The number of practising lawyers in United States is over 950,000 (Friedman 75). According to The Official Guide to U.S. Law Schools, 2001 Edition, 72.9 percent of U.S. lawyers are in private practise, 8.2 percent are in government service agencies, 9.5 percent are engaged by the private corporations and associations, and approximately 1.1 percent work for legal aid associations or as public defenders representing persons who are unable to afford a lawyer and one percent are engaged in training or legal education (Hammerstrom, 3).
The United States courtrooms are often refereed as battle or playing fields with the adversarial system employed in the ‘court-fields’ giving the impression of that the legal disputes which must be won at all costs. The adversarial system is where opposing counsel of the prosecutor and defending lawyers engage in verbal legalistic battle to showcase in attempts to triumph against each other in courtroom battles. The judges and juries in adversarial system are impartial to ensure fair play. The judge is limited in rules of admitting evidence unlike the inquisitional court system. The prosecuted person is guaranteed the right of an attorney in the adversarial system. The ‘rights of silence’ or refusal by the accused to give evidence in adversarial system can be inevitably used against the person hence stripping the person a defence of keeping silent. The power of the judge is therefore limited in adversarial system as the opposing counsel tries the case through verbal engagements to a slightly subdued judge as opposed to the traditional inquisitional judges who doubled as both judges and prosecutors in efforts to get at the bottom of the case.
Early criminal defendants did not enjoy the services of a lawyer and were often hounded by judges with the onus of proofing innocence an uphill task. This is in contrast to the contemporary adage of innocent until proven guilty. The modern courtroom is dominated by lawyers who pride themselves in finding loopholes within the legal system to extradite their clients from the clutches of the law. Wealthy corporations engage permanently sharp tax expert lawyers to assist the firms fight off the tax authorities in cases where they deliberately evade paying taxes. Patent lawyers are engaged by research firms to fight-off encroaching corporate raiders’ intent on exploiting their inventions. And similarly criminal gangs retain experienced criminal trial lawyers who continuously humiliate the government prosecutors in courtroom ‘battles’ hence leading to the latter reluctance to engage the formidable cartels who profit from the system employment of trial cases.
This is a system that on the flip-side prosecutes petty criminals who are driven to the criminal life by poverty and inadequate education opportunities. These petty criminals are indoctrinated into becoming hardcore thugs as they get acquainted with experienced criminals in the corrective centres or jails. Although the law provides for government paid lawyers in cases of criminal nature, the inexperienced lawyers are similarly crushed in the courtroom battlefields by the more hard-boiled prosecutors. The United States is credited in having the highest per capita representation of lawyers in the world as the profession becomes more lucrative to the large corporate lawyer firms that sometimes retain a staff of over a thousand lawyers in a single firm. The firms have made the profession quite redoubtable as they employ experts in various fields to assist in their cases ranging from investigators to psychologists to evaluate juries and public relation firms to counter negative publicity for their clients etc. This mean that the wealthier individuals or corporations are insulated against the legal system and hence left free to engage in anti-legalistic ventures ranging from tax evasion, corporate raids, and intimidation of employees and customers who are incapable of fighting the large conglomerates.
Some trial lawyers have also profited from continuously engaging the large conglomerates in cases where clients or customers who have faced injuries are persuaded to enter suits against the large firms and agree to pay a certain percentage expected payouts to the lawyers. These lawyers are not afraid to take on the big industry firms like the tobacco or pharmaceutical corporations and aggressively engage them in belated mucky prosecutions that impact negatively on the large firms who are sometimes forced to settle large sums of cash outside courtrooms or face hostile juries that award the litigants hefty settlements hence handsomely enriching the trial lawyers. The lawyers employ the same tactics used by the large firms in form of engaging investigators, public relation firms, experts in form of doctors, engineers etc. The legal profession is therefore always the winner in these activities as firms have to always budget or set aside a large proportion of their funds to cater for potential litigation and lawyer fees. The lawyers involved in these type of prosecutions advertise their services to potential clients and hence the term ‘ambulance chasers’.
The adversarial system has its admirers as well as critics as the media highlight high profile cases like the O.J. Simpson case or Michael Jackson case. The fact that in the later a seemingly obviously ‘guilty’ suspect who is already tried in the public court got off ‘Scott-free’ harden the impression of the critics of the adversarial system who become convinced at the lack of fair trial in dispensing equitable justice in cases where the lawyers take centre-stage over the important function of getting at the truth and prosecution. The scoring of ‘points’ by the opposing counsels as opposed to the traditional dispensing of justice is given more prominence by both the counsels and the public and the truth is buried in the process (Erwin Chemerinsky 31,32). Critics of the system are therefore calling for reforms in the U. S. legal to ensure fairness to all as high profile suspects continue to evade prosecution in view of their superior counsels and manipulation of the legal system (Herman, 2).
One of the alternative methods advocated to resolve disputes, is mediation and arbitration. However, the defenders of the adversarial system argue that these systems have always been there and can also be abused as litigants and defendants intimidate each other as well in the mediation halls as in the courtrooms. They further argue that the adversarial system while not perfectly give all parties in a prosecution the best occasion to give evidence and opinion to an independent judge and jury and in a democratic society is the pre-eminent accessible way of settling disputes (Hammerstrom 3). One of the advantages of the adversarial system over the inquisitional system is that when a suspect or criminal admits guilt, the court proceeds to prosecution while in the latter system of inquisition; it’s just a further step in finding out the ‘truth’. This saves in the costs of trials and is fair to both parties. However, opponents oppose the view as they point out to the possibility of abuse by the prosecution in extracting confessions under duress or negotiating for lighter sentences that defeat justice to the aggrieved parties (Chemerinsky, 15).
Although the United States legal system is credited for having a fair judicial an litigation process, it has also been accused of being too typically adversarial in approach. This is evident in the endless appellate litigation that is costly and energy sapping to both the plaintiffs and litigants alike. This current state of affairs is only fair to the wealthy and lawyers who profit from the long judicial process. The result is injustice for the less wealthy that cannot afford or are poorly represented by incompetent lawyers. The numerous libel cases are also detrimental to potential international investors who tend to shy away from the American libel-happy society that will bombard them with lawsuits at the slightest provocation (Herman, 1). According to Hammerstrom, the legal system favours the wealthier portions of the population while discriminating against the less wealthy and as result curtails the freedom of the majority (Hammerstrom, 9).
Although the law allows for the rights for own representations, the complexity of the legal system force most litigants to engage lawyers who inherently profit from this type of engagements. The system is criticised for being similar to the ancient customs of trial by ordeal (engaging in physical engagements to determine the winner) or the papal and other divine laws that were marked by unfairness or purchasing justice. Complex scientific or technological cases remain unresolved amicably and the litigation is obscured through judicial posturing by opposing counsel who inevitably twists evidence by experts in illogical arguments hence frustrating justice.
The United Sates legal system has however been credited with impacting positively on the American society in terms of various landmark judgements especially from the Supreme Court. A notable precedent is in racial equality or in Brown v. Board of Education whereby the ruling helped in the drive for racial parity. Working in tandem with the executive branch of the government (the strong support of Presidents John F. Kennedy (1961-63) and Lyndon B. Johnson (1963-69)), the court played a crucial role in persuading legislation and lower courts into the passage of 1964 Civil Rights Acts ten years later. The policy making decision of the court which had been the lone supporter of racial equality highlights the importance of the judicially in settling difficult political and social issues that would otherwise be too volatile for the political class of the other branches of the government or Congress and the President. The Supreme Court in the era of Chief Justice Earl Warren’s (1953-69) changed the procedures followed in criminal prosecution obtaining of evidence and treatment of defendants in Mapp v. Ohio (1961), Gideon v. Wainwright, and Miranda v. Arizona (Friedman). The Roe v. Wade (1973) the Supreme Court ruling continue to draw reactions in issues of abortion as it led to some states (32) legalising or passing over 62 laws relating to abortion and is a continuing volatile political topic (Friedman, 73).
Since the judiciary engages in policy making through rendering decisions, interest groups involve themselves in cases of national or public interest through a processes or submission of amicus curiae briefs to supplement the argument of one of the parties to the case. This is done by obtaining the permission of the court; however the government does not need to seek permission and does so mostly through the Solicitor General. In other instances, interest groups support cases by providing logistical support or funds. This was evidenced in the Brown v. Board of Education (1954). Despite the case being between the Board of Education of Topeka, Kansas, and the parents of Linda Brown, the National Association for the Advancement of Colored People (NAACP) provided the legal assistance and funds essential to push the case up to the U.S. Supreme Court. This episode illustrates the importance of the courts in advocating individual as well as public important issues (Friedman, 27).
There is a need to reform the U.S. legal system as it’s too intricate in its approach to justice through the numerous parallel court systems. The unification of the federal and state legal courts both in the lower and appellate courts can foster faster dispensing of justice as the system perpetuates an expensive wasteful method of dispensing justice. Nevertheless, the U.S. legal system is an example of humanity’s search for equitable justice to all and still serves well the majority of the population. The Constitutions separation of the different branches of the legal system ensures that independence and equitable rule of law is withheld. The importance of the Judiciary in enacting policy on issues that the law-making political arms of the government have failed are particularly important in minor and major decisions in sealing loopholes in justice dispensing and provide ample proof of a good legal system.
Erwin Chemerinsky. “Understanding the U.S. Legal System.” State Bar of California – A Guide to Legal Literacy (2001): 31,32.
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Friedman, Michael Jay. “History and Organization of the Federal Judicial System.” 2004. THE U.S. LEGAL SYSTEM. 2008. Web.
“Outline of US Legal System.” 2004. History and Organization of the Federal Judicial System. 2008. Web.
Hammerstrom, Doug. “The Rule Of Law versus Democracy.” What Authority (Vol. 5, No. 1 – 2002).
Herman, Michael. “US legal system ‘worse than Russia’.” 2008. Web.
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Radcliffe, Mark F. and Diane Brinson. “The U.S. Legal System.” 1999. FindLawLibrary. 2008. Web.