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FALL 2018
*INTRODUCTION
TO UNITED STATES LAW--Introductory
Remarks
--Last Modified:
Thursday, 02-Aug-2018 09:20:25 EDT
Introductory Remarks:
Orientation to the Structure of Laws
in the United States
The law of the United States is not a single body of law.
Rather, in the United States, the law is
primarily structured as a dual or parallel
system of substantive laws. (Some
exceptions to the dual structure are noted
at the end of this summary.) First, there
is a national or federal law which applies
throughout the United States. The
national law principally consists of the
United States Constitution (the document
that structures the federal govenment and
its relationship to the states, among
other things), the United States Code
(statutory law), and treaties.
Second, there is a system of substantive
state laws which apply generally within
the geographic boundaries of a particular
state (though there is the possibility of
extra territorial application of state
law). State substantive laws consist
of a state constitution, statutory laws
enacted by a state legislature and the
common law (with traces of civil law in
Louisiana). As you may know, there are
fifty states in the United States.
What this means, as a practical matter, is
that a single federal or national law
applies across all fifty states BUT there
are fifty different systems of state laws
which may apply to a particular matter
depending on the location of the matter,
the parties involved and the property
subject to the law. Needless to say,
this double system of substantive laws can
be very confusing on first exposure.
To add to this confusion, in the United
States there are two primary systems of
courts--a national or federal court system
AND a state court system (indeed, fifty
individual state court systems, as each
state has its own system of courts).
Accompanying this dual system of courts,
one finds a dual system of procedure to
follow in the courts--federal procedure is
followed in the federal courts and the
applicable state court procedure is
followed in each state court system.
It is typical for the procedure followed
to be divided between civil procedure and
criminal procedure, depending on the
nature of the case. For example,
there are Federal Rules of Civil Procedure
and Federal Rules of Criminal
Procedure. It is common for the
details of Federal Civil Procedure to
differ from the rules of civil procedure
followed in a state court (and, similarly
for criminal procedure). As a matter
of detail, even certain aspects of
procedure in the federal court system may
vary slightly by geographic district if a
federal judicial district has adopted what
are known as "local rules." Aside
from these local rules, the procedure
followed in federal courts is uniform
across the United States. The
procedural rules followed in the various
state courts are not uniform (though there
will be many similarities--the differences
typically are in the details).
A striking feature of law in the United
States is the degree to which the laws of
political subdivisions of the national
government play a central role in the
practice of law--particularly given that
there are fifty states (and, as noted at
the end of this summary, some additional
important subdivisions that are not
states!). This might seem like a
recipe for chaos.
Two examples illustrate the central role
played by state law, as opposed to federal
or national law, in the United
States. First, the profession and
practice of law is primarily regulated by
the individual states, and not the federal
government. In order to practice law
in the United States, as a general rule,
one must pass a bar exam in a particular
state (such as New York or Florida).
After passing the exam, coupled with a
background or fitness check administered
by the state and passage of an ethics
exam, a person may be admitted to the bar
in that state. However, a license to
practice law is generally limited to
practice within the state of admission,
but not elsewhere. For example, I am
admitted to practice law in the State of
New York. This bar admission does
not qualify me to practice law in the
State of Florida. To practice law in
the State of Florida, I would have to take
the Florida bar exam and go through the
admission process in Florida. Though
admission to the practice of law is done
on a state by state basis, one does not
find sub-classifications, such as
solicitor and barrister, as one finds in
some countries.
[NB:
In our first class, I would like to know
whether and to what extent such a system
exists in your home countries. My
understanding is that, in many countries,
admission to the practice of law is
controlled at the national level and not
at the level of a political subdivision of
the country, though membership in a local
bar association may be required.]
Second, much substantive law in the United
States is state law and not federal
law. For example, the substantive
law governing most contracts in the United
States will be state law and not federal
law. Thus, in a contract for the
sale of goods between a Florida person and
a New York person, it is common to include
a governing law clause which will specify
that either Florida law or New York law
will govern the transaction--in certain
key respects the contract law of these two
states differ--and thus a choice must be
made. One would not specify the
governing law for a contract to be
performed in the United States to be
simply "United States law." The law
of a particular state must be
specified. Even in an international
transaction in which it is desired to
specify United States law as the governing
law, the contract will select the law of a
particular state to govern the
transaction--and not the law of the United
States more generally.
I suspect that lawyers who have practiced
international transactions will be
familiar with governing law clauses in
contracts between parties in different
countries. For example, a contract
between a person in Colombia and a person
in France may elect to apply the law of
France, the law of Colombia or an
international treaty such as the CISG to
govern the transaction. However, for
a contract between a person in Bogota and
a person in Cartagena, or between a person
in Paris and a person in Nice, one might
expect the contract to be governed by a
national civil code applicable to all
contracts entered into within Colombia or
France. Thus, though a contract to
be performed internally within a single
country may state a governing law for the
sake of completeness (e.g. "This contract
shall be governed by the laws of
France."), there is no real decision to
make (or law to choose) for a transaction
that is internal to a particular
country. This is, as noted above,
not the case in the United States.
Choice of law rules and, in voluntary
transactions, decisions to elect
application of the law of a particular
state matter a great deal even for matters
and transactions internal to the United
States.
[NB: In our
first class, I would like to know whether
and to what extent, you find that a single
national law is applicable in a uniform
manner throughout your country to various
types of transactions and circumstances or
whether an when the law of a political
subdivision would be important.]
To be sure, the prominent role played by
state law in the United States may seem
chaotic. A few rules, however,
mitigate potential conflicts and
confusions, though they do not eliminate
them.
The overriding principle which brings some
order to this dual system of laws in the
United States is known as the "Supremacy
Clause." It is contained in the
United States Constitution--the highest
law in the land. In substance, it
states that if there is a conflict between
a federal law and a state law, the federal
law shall govern or control the matter
covered by the law. The text of the
Supremacy Clause is as follows:
"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." U.S. Const. Art. VI, cl.
2.
Taken in isolation, the Supremacy Clause
principle could, over time, render state
law irrelevant. This would happen if
the federal government enacted laws that
superceded laws passed by the individual
states or if the United States Supreme
Court found that a state law violated its
provisions.
To be sure, in some areas of law, the
federal government has enacted laws that
supercede state laws. And, some
state laws have been struck down by the
United States Supreme Court as a violation
of the United States Constitution. A
signature example of federal law
superceding state law is in the area of
racial discrimination. Following the
United States Civil War (which ended in
1865) many state laws had been enacted
which discriminated against African
Americans on the basis of race. The United
States Supreme Court found that such laws
violated the United States
Constitution. And, Congress has
passed various laws governing civil rights
and voting rights to guard against wrongs
such as workplace discrimination and state
laws designed to deny, as a practical
matter, the right of African Americans to
vote. However, there has not been a
wholesale or widespread replacement of
state law by federal law. This
replacement has not happened in a
comprehensive way due to a second
structural feature of the United States
Constitution--the restriction of the
federal government to the exercise of
"enumerated powers." See U.S. Const. Art.
I, sec. 8. However, we shall also
see that the United States Supreme Court
has given a broad interpretation to the
scope of some of these enumerated powers
so that the ability of the federal
government to pass legislation is broader
than the simple language of the United
States Constitution would seem to suggest.
[Current event
note: You may have read in
the press about the relaxation of certain
state criminal laws which prohibit the
sale and use of marijuana in the United
States. Laws against marijuana sale
and use exist as both federal law, which
treats marijuana as a controlled
substance, as well as state laws.
Various states (eight in total by my
count), including California, Colorado
(and, recently, Nevada) have legalized the
sale and recreational use of marijuana
(with additional states allowing for
medicinal use). However, the federal
law has not been changed. It appears
that the federal government, at least
until now, has not been enforcing federal
law against marijuana distribution and use
in these states to any great extent.
A good case can be made that the federal
laws against marijuana are not wise and
should be repealed. However, until
then (if ever) we have a case in which
state law is functioning as if it were
supreme over federal law because of lax
enforcement or non-enforcement of federal
law. As a pure matter of the
structure of government, this is a
troubling circumstance for the rule of
law, regardless of your views on the
merits of the issue. On August 1, 2017,
Senator Cory Booker from New Jersey
introduced a bill before the United States
Senate to change federal marijuana
laws--essentially legalizing marijuana as
a federal law matter. NB: Please
do an internet search for "Cory Booker"
& "marijuana" to read further about
this development--you might start with UPI
and Washington Post articles. Note
that many see the criminalization of
marijuana use as a civil rights issue
because enforcement of those laws has
adversely impacted the African American
community. One might see an
inversion of the role of federal and state
law from that found in the last century in
the United States--in the past federal law
was on the vanguard in protecting civil
rights from discriminatory state
law. In the area of marijuana laws,
one might see certain states as on the
vanguard in protecting civil rights, while
federal law functions in a discriminatory
fashion. The problem, of course, is
that as a matter of the structure of
government, because of the Supremacy
Clause, the states do not have the
ultimate power to protect against a
federal government determined to enforce
marijuana laws. One solution is to
elect Senators and Representatives to
Congress who would vote to repeal existing
federal marijuana laws. Absent such
a change in federal law, the conflict
problem will continue to exist.]
The principle of enumerated powers in
essence states that the federal government
may only enact legislation that regulates
enumerated (and thus limited) subject
matter areas. Any subject matter
area for which the United States
Constitution does not give power to the
federal government to legislate is
reserved to the states. This means
that, in theory, there are vast areas of
social conduct over which the federal
government has no power to pass
legislation. This structural feature
leaves a large area of regulation to the
exclusive province of the states. If
only the state can pass a law with respect
to a certain subject matter, then there is
no possibility of a conflict with a
federal law for which the Supremacy Clause
must be invoked to resolve the
conflict. Or so it would seem.
One enumerated power given to the federal
government under the United States
Constitution is the power to regulate
interstate commerce--this power is known
as the Commerce Clause power.
Using federal marijuana laws again as an
example, however, we can see that
restricting federal law making only to
enumerated subject matter areas has not
resulted in an overly stringent limitation
on the exercise of federal power. In
1970, President Nixon signed the federal
Controlled Substances Act which sets
federal policy with respect to
drugs. It regulates the manufacture,
importation, possession, use and
distribution of certain substances by
listing substances on five different
schedules. Marijuana is listed as a
"Schedule I" substance for which
restrictions and penalties are most
stringent. Among other features
which criminalize marijuana, no
prescriptions may be written by a doctor
for a Schedule I substance. The
State of California had passed a state law
called the Compassionate Use Act which
allowed individuals to grow and use
marijuana for personal medical use under
doctor supervision. Thus, there was
a direct conflict between federal law and
state law. Under the Supremacy
Clause, federal law should preempt state
law. However, individuals who used
medical marijuana in California in
compliance with California law sued for
injunctive and declaratory relief to block
enforcement of federal law in their
case. The United States Supreme
Court held that Congress had the power to
prohibit the local cultivation and use of
marijuana in compliance with California
law because the power of Congress to
regulate interstate commerce included the
power to regulate purely local activities
that are part of an economic "class of
activities" that have a substantial effect
on interstate commerce. The case is
Gonzales
v. Raich, 545 U. S. 1 (2005).
You should read
this case before our first class
meeting for a good
introduction to the operation of the
Supremacy Clause and the use of enumerated
powers to pass federal legislation,
particularly the Commerce Clause.
[Current event
note:
I view the current trend under state laws
to legalize marijuana use, and the
conflict with federal drug laws, to be one
of the most, if not the most, significant
issue with implications for our structure
of government in the United States
today. That is why I have included a
somewhat extended discussion of the matter
in this year's introduction to United
States law course.]
[Current event
note: You may have read in
the press about efforts to reform the
health care system in the United
States. The issue, in broad brush,
is whether or not to repeal legislation
signed by President Obama which, among
other things, required individuals to
purchase health insurance in individual
marketplaces (often with a subsidy to aid
low income persons). Without
considering its policy merits, the legal
issue following passage of the Affordable
Care Act (or Obamacare) was whether or not
the United States Congress had the power
to pass such a law because it required the
purchase of health insurance. Such a
law could not have been passed unless a
specific provision of the United States
Constitution authorized its passage.
Obviously, no specific provision of the
United States Constitution mentioned
health care insurance. However, the
United States Constitution does authorize
Congress to pass laws regulating
interstate commerce as one of its many
enumerated powers. Many thought that
the Affordable Care Act might be sustained
as a regulation of interstate
commerce. Having read Gonzales
v. Raich assigned above, you might
have reached this same conclusion.
However, by a vote of 5-4 in the United
States Supreme Court, the Justices held
that the regulation of interstate commerce
did not go so far as to authorize Congress
to force individuals to purchase a
product. The Afforadable Health Care
Act (or Obamacare) was upheld, however, as
a proper exercise of power under the
specific authority given to Congress to
impose a tax, another specific enumerated
power. No members of Congress, nor
President Obama, had argued that the law
was a proper exercise of federal authority
on the basis of the taxing power--probably
for the reason that raising taxes is
unpopular. Additionally, over the
years, the United States Supreme Court had
given a very expanded reading of those
types of activities which might affect
interstate commerce and thus become a
proper subject for federal
legislation--again, as illustrated by Gonzales
v. Raich. It had gotten to the
point that many believed almost any sort
of federal legislation might be upheld by
invoking the Commerce Power. The
more expansive an interpretation given to
enumerated powers, the greater the chance
that a federal law will replace a state
law.]
The court system is a third area in which
one might think the federal courts would
or could replace the state courts.
Again, this has not happened due to a
structural feature of the federal court
system. To file a case in federal
court, as a general matter, one must have
two types of jurisdiction: personal
jurisdiction over the parties; and,
subject matter jurisdiction over the type
of case filed. The federal courts
are courts of limited subject matter
jurisdiction--a federal court can only
hear certain types of cases in which
subject matter jurisdiction exists.
This is true even if the court would
otherwise have personal jurisdiction over
the parties. In contrast to the
limited subject matter jurisdiction of the
federal courts, state courts are typically
courts of general jurisdiction which may
hear any case for which a cause of action
might be sustained and over which the
state court has personal jurisdiction over
the parties. [Note, a court may
assert jurisdiction in appropriate cases,
other than personal jurisdiction, by
invoking "in rem" or "quasi in rem"
jurisdiction, which will be addressed
later in the course.] The two most
common types of federal subject matter
jurisdiction are known as "federal
question jurisdiction" and "diversity
jurisdiction." These will be
examined in more detail later in the
course, but as prelude, federal question
jurisdiction generally arises when the
issue in a case turns on the application
or interpretation of a federal statute or
a provision of the United States
Constitution. Diversity jurisdiction
arises when a case involves a plaintiff
from one state and a defendant from
another state (provided that a
jurisdictional threshold amount in
controversy is at stake--currently an
amount in excess of $75,000).
Importantly, the question of subject
matter jurisdiction is a question of pure
power. Parties may not waive the
requirement to satisfy subject matter
jurisdiction--a court without subject
matter jurisdiction is simply powerless to
hear the case. A party may raise
lack of subject matter jurisdiction to
dismiss a case. Alternately a court
can raise the issue of lack of subject
matter jurisdiction on its own motion,
without party involvement, and dismiss the
case. In contrast, a party may elect
to waive an objection for lack of personal
jurisdiction by consenting to the
jurisdiction of the court--a party may do
this because the objection to lack of
personal jurisdiction is a personal right
of the party, and not a questoion of power
of the court to act.
As a general matter, both the federal
courts and the state courts are structured
as a three tier system. At the
federal level, the lowest level court is a
trial court known as a "Federal District
Court." A single judge presides over
a trial at which facts are found
(generally by a jury--unless the right to
a jury trial is waived) and the law is
applied. A Federal District Court
may hear both civil and criminal matters
over which it has jurisdiction.
Above the Federal District Court sits an
appellate court known as a "Federal
Circuit Court of Appeals."
Typically, three federal circuit court
judges sit on a panel to hear and decide
the appeal. As a general matter, a
party has the ability to appeal a decision
of a Federal District Court to a Federal
Circuit Court of Appeals. Above the
Federal Circuit Courts of Appeal sits the
United States Supreme Court--the highest
court in the United States federal court
system. It is staffed by nine judges
who are referred to as "Justices."
As a general matter, one does not have the
right to cause the United States Supreme
Court to hear an appeal from a Federal
Circuit Court of Appeals. The
typical way in which a case is heard by
the United States Supreme Court is by
filing a document called a "writ of
certiorari" with the Court, explaining why
the case is of sufficient importance to be
heard. A common reason for the grant
of such a writ is what is known as a
"Circuit Split"--a circumstance in which
one Federal Circuit Court of Appeals has
decided an issue of law one way, while
another Federal Circuit Court of Appeals
has decided that issue of law another
way. The United States Supreme Court
is likely to take such a case in order to
settle the matter (or resolve the "split")
so that the application of law is uniform
throughout the United States. A
similar three tier structure of courts is
found in state court systems, though the
number of judges hearing an intermediate
appeal or an appeal to the highest state
court may vary. Though the United
States Supreme Court is the highest court
in the United States, it is not the final
decisionmaker on matters of state
law. The proper interpretation of a
state law is reserved for the highest
court in the applicable state. It is
not uncommon for a federal court to
"certify" a pure question of state law to
the highest state court in order to obtain
an interpretation.
Now, the characterization of United States
law as a "dual" system of laws divided
between national law and state law,
coupled with a dual system of national and
state courts, is a generalization or
simplification of the true state of
affairs. For completeness, you
should know that there are exceptions and
details which qualify this generalization
as briefly outlined below.
First, there are geographic areas in the
United States subject to its jurisdiction
which are not technically "states".
Examples of such geographic areas include
the Commonwealth of Puerto Rico,
territories such as the United States
Virgin Islands, and the District of
Columbia (in which the capital of the
United States is located). These are
all areas located outside the geographic
boundaries of any of the fifty
states. To a greater or lesser
extent, like the states, these are
political subdivisions which also have
their own local laws.
Second, political subdivisions exist
within each of the fifty states.
Generally, these political subdivisions
are known as "counties" (in Louisiana,
"parishes") and "municipalities" (or
"cities"). For example, the
University of Miami is located in
Miami-Dade County and in the City of Coral
Gables. It is common for both
counties and municipalities to have
enacted laws. Sometimes these laws
are known as "ordinances." For
example, in Miami-Dade County it is
illegal to own a dog breed known as a "pit
bull." In Coral Gables, it is
required that one obtain a permit to
construct an addition onto your home (or,
indeed, to paint it a different
color!). In other cities in
Miami-Dade County, the laws governing home
renovation are typically less
restrictive. In other counties in
Florida, one may own a pit bull.
Third, even within a state it is possible
that certain geographic areas will not be
subject to the laws of that state.
For example, in certain states of the
United States there are Native American
lands known as "Indian Reservations" or
simply "Reservations" which are subject to
governance by Native American tribes of
indigenous peoples. An example of such an
area is the Miccosukee reservation west of
Miami-Dade county. For example, the State
of Florida would not be permitted to enter
a reservation to arrest a Native American,
even for a crime committed in Coral
Gables. Even though Florida law
generally prohibits most forms of casino
gaming, casinos are permitted on
Reservations. Native American tribes
in various states of the United States
have taken advantage of their exemption
from state laws to run various casino
businesses within the state despite a
generally applicable state prohibition on
casino gaming. (Casino gaming is an
example, and this is not a definitive
statement or summary, of a very complex
area of law.) To a greater or lesser
extent, Tribal councils have enacted their
own laws which apply on tribal reservation
lands. For example, many have
enacted some form of commercial
code. Another example of a
geographic area within a state which is
not generally subject to the laws of the
state include National Parks (such as the
Everglades) and United States military
bases.
These exceptions and details can be very
important, or even critical, to a certain
matter. However, they are of
secondary importance for a first
introduction to United States law.
To provide a practical viewpoint for some
topics raised in the discussion above, at
the end of the Introductory Remarks we
will consider a clause from an actual
syndicated loan agreement reproduced
below. See
if you can identify or explain some
features of the below clause based on
the above discussion.
What law has been chosen to govern the
agreement and why? Why are New York
conflicts or choice of law rules excluded
from the law chosen? What do you
suppose the references to New York General
Obligations Law are for? [Do not hesitate
to search the internet or look in the law
library to see the text of these laws!].
Why are the parties submitting to the
jurisdiction of both New York State courts
and a Federal district court located in
New York?
s. 26. GOVERNING LAW; JURISDICTION;
SERVICE OF PROCESS. THIS AGREEMENT AND
EACH OF THE OTHER LOAN DOCUMENTS ARE
CONTRACTS UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL FOR ALL PURPOSES BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF SAID STATE (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAW (OTHER THAN THE NEW YORK GENERAL
OBLIGATIONS LAW s. 5-1401 AND s. 5-1402)).
EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. * * *
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