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FALL 2018
*INTRODUCTION
TO UNITED STATES LAW--Lecture
Topic 1: Federalism
--Last Modified:
Thursday, 02-Aug-2018 09:29:44 EDT
Lecture Topic 1:
Federalism
This lecture is designed to build upon,
and provide additional details for, the
discussion about the dual structure of
laws in the United States which we began
to consider in the Introductory Remarks
and related reading.
Federalism is a system of government in
which the same territory is controlled
by two levels of government. Generally,
in a federal system, an overarching
national government sets policy and
administers issues that affect the
entire country; smaller government
subdivisions set policy and administer
issues of local concern. In a federal
system, both the national government and
the smaller political subdivisions have
the power to make laws and both have a
certain level of autonomy from each
other. The United States has a federal
system of government consisting of the
national or federal government, and the
various governments of the individual
states. [Read INTRO TEXT, Chapter 6,
The Legislative System, at pp. 69-80.]
Due to federalism, both the United
States federal government and each of
the state governments have their own
court systems, legislatures and
executive branches. [Read INTRO
TEXT, Chapter 4, The Judicial System,
A Dual System of Courts, State Courts
and Federal Courts, at pp. 43-47.]
The President of the United States is
the chief executive officer of the
United States. Each state government has
its own chief executive officer known as
a "Governor."
The legislative branch of the United
States consists of two elected bodies:
the Senate and the House of
Representatives. These two bodies are
referred to collectively as the
"Congress." The structure of the
legislative branches of the several
states varies, but often is composed of
two elected bodies as well.
The judicial branch of the United
States will be described in greater
detail elsewhere in these materials. In
general outline, the federal judicial
system is comprised of district courts
(at which trials are conducted),
intermediate appellate courts known as
"Circuit Courts of Appeal", and a single
Supreme Court. In addition to the basic
three tiered structure of the federal
courts, the judicial system of the
United States also includes a number of
specialty courts handling matters such
as bankruptcy, patents and taxes. The
several states typically have a similar
three-tiered court system, with trial
courts, intermediate appellate courts
and a supreme court, as well as
specialty courts to handle matters such
as probate and family disputes. Students
should take care, however, to note that
some states assign different names to
their courts. In New York state, for
example, the trial court is referred to
as a "supreme court," while the highest
appellate court is referred to as the
"Court of Appeals."
The U.S. Constitution is the organic
and foundational document which sets up
the federal system of government in the
United States pursuant to which power is
shared between the federal government
and the various state governments within
the territory of the United States. The
U.S. Constitution is the supreme law of
the land in the United States. Even
though power is shared between the
federal government and the several
states, in the event of a conflict
between a federal law and a state law,
federal law controls--the Supremacy
Clause principal which was introduced to
you in the Introductory Remarks.
Moreover, the U.S. Constitution is
supreme over laws passed by the federal
legislature. No federal law may alter
the structure of government set forth in
the U.S. Constitution or infringe on any
rights conferred on persons as granted
by the U.S. Constitution. Many of the
basic rights granted to U.S. Citizens
are contained in the first ten
amendments to the U.S. Constitution
known as the "Bill of Rights".
Additionally, no law may be passed by a
state legislature which infringes on any
rights conferred on persons as granted
by the U.S. Constitution. The
restrictions on actions by the federal
government against its citizens
contained in the Bill of Rights has been
extended to limit actions that may be
taken by state governments.
Individual states have their own state
constitutions which create the structure
of the individual state governments.
Though often overlooked in introductory
legal studies, the state constitutions
also grant rights to their citizens
which may not be infringed by action of
the state legislatures. These
protections often mirror those found in
the U.S. Constitution but they may
afford greater protections (or language
in a state constitution that is similar
to language in the U.S. Constitution may
be given a more expansive reading by the
supreme court of a state).
Though the structure of both the U.S.
government and the several state
governments are established by organic
documents known as "constitutions" it
bears noting that the nature of these
constitutions may differ radically in
their character and level of detail. The
U.S. Constitution is a relatively short
document drafted in general language. In
operation, to function it relies heavily
on interpretations of this general
language by the U.S. Supreme Court. As
the U.S. Constitution is notoriously
difficult to amend, there is little
practical way for the electorate to
change an outcome if the Supreme Court
finds that a law conflicts with the
Constitution. In contrast, many state
constitutions may be amended by a simple
ballot initiative in a state. The
difference in the amendment process has
two outcomes. The electorate may more
easily change an outcome mandated by the
state supreme court and it allows for a
type of direct legislation by the
electorate. Many state constitutions are
riddled with very detailed provisions
governing small details such as the
proper housing that may be used to raise
certain types of livestock. Though state
constitutions also provide for the
general structure of state government,
provisions containing such details might
surprise those who have not looked.
The U.S. Constitution grants the
federal government power over issues of
national concern, while the state
governments, generally, have
jurisdiction over issues of domestic
concern. While the federal government
can enact laws governing the entire
country, its powers are enumerated, or
limited; it only has the specific powers
allotted to it in the Constitution. For
example, Article I, Section 8 of the
Constitution grants Congress the power
to levy taxes, mint money, declare war,
establish post offices, and punish
piracies on the high seas, as well as
the power to regulate interstate
commerce. Any action by the federal
government must fall within one of the
powers enumerated in the Constitution.
For example, the federal government can
regulate interstate commerce pursuant to
the Commerce Clause of the Constitution
but has no power to regulate commerce
that occurs only within a single
state--at least that is the theory--a
proposition severely tested by
interpretations such as those found in
Gonzales v. Raich, which we considered
in the Introductory Remarks.
The amount of power exercised by the
federal government is dependent on how
the U.S. Supreme Court interprets the
various provisions of the Constitution.
For example, the U.S. Supreme Court
expanded the powers of the federal
government when it construed federal
powers to include those "necessary and
proper" to effect the legislation passed
by Congress. McCulloch v. Maryland, 17
U.S. 316 (1819). This construction
allows the federal government to
exercise power ancillary to those
specifically listed in the Constitution,
provided the exercise of those powers
does not conflict with another
Constitutional provision.
And, in our earlier consideration of
Gonzales v. Raich, you have seen how the
Supreme Court has given a broad
interpretation to the scope of certain
enumerated powers, such as those found
in the Commerce Clause. In contrast,
state power is not limited to express
grants of power. Under the Tenth
Amendment of the Constitution, States
have all powers that are not
specifically granted to the federal
government, or forbidden to them under
the Constitution. For example, although
the Constitution grants the federal
government the power to tax, state
governments are also able to levy taxes
to support themselves, because that
power is not forbidden to them by the
Constitution. State governments manage
matters of local concern, such as child
protective services, public schools, and
road maintenance and repair.
Some Practical Issues Raised by a
Complex Federal System
The practice of law
As a profession, the practice of law is
regulated. A person must pass a "bar
exam" to be admitted to the practice of
law. Admission to the bar is, primarily,
a matter of state law and regulation. A
person takes the bar exam of a
particular state to be admitted to the
practice of law in that state. The bar
exam varies by state because the laws in
each state differ from one another in
certain respects (though it is typical
for a portion of the bar exam to include
a "multi-state" portion which is common
throughout the United States). The need
for examination and regulation of the
legal profession to take place at the
state level is a function of the system
of federalism in which each state passes
its own laws and administers its own
courts. Once a person has passed the bar
exam and gained admission to the
practice of law in a particular state,
gaining admission to practice law in a
federal court is largely a formality. [Read INTRO
TEXT, Chapter 3, Legal Profession, The
Bar, at pp. 27-30.]
Choice of law and forum
Lawyers around the world undoubtedly
seek certainty for their clients.
However, in a system of particularly
complex federalism as found in the
United States, with a very large number
of jurisdictions, court systems and
potentially conflicting laws, these
concerns can be particularly acute. How
is a party to know which of many
potentially conflicting laws might apply
to a transaction and in how many
different courts might a party be
subject to a law suit?
Under the laws of the various states,
perhaps responding to these concerns
over certainty and the need to advise
clients, parties engaging in voluntary
contract transactions have, as a general
matter, the power both to choose the law
which will govern their transactions and
the forum in which disputes may be
heard. Students should compare the Florida
Choice
of Law Statute with the New
York
Choice of Law
Statute [for NY, go to Laws, GOB
General Obligations, Title 14, Article
5-1401] and the Florida
Choice
of Forum Statute with the New
York
Choice of Forum Statute [for NY,
go to Laws, GOB General Obligations
Title 14, Article 5-1402]. These types
of statutes should be familiar to any
lawyer who practices business law in the
United States. In reviewing these laws,
however, you might note that the
statutory choice of law and choice of
forum provisions do not apply to every
transaction. That is to say, a lawyer
may not always rely on a statute to
determine whether a choice of law
elected in an agreement will be
enforceable under the law of a
particular state. In those cases, a more
involved legal analysis will be needed
to assess the potential enforceability
of a choice of law clause. See the
discussion of choice of law opinions in
the extensive report on opinion practice
prepared by the Business Section of the
Florida Bar https://www.americanbar.org/content/dam/aba/administrative/business_law/buslaw/tribar/materials/20111203_florida_third_customary_practice.authcheckdam.pdf
(go to page 169 where the discussion
starts).
Another feature of law practice in the
United States that is impacted by having
a federal system is the impact of the
distinction between procedural law and
substantive law. In any case heard in a
state court, the court will apply its
own procedural rules to administer the
handling of the case. The rules of
procedure in state courts varies state
by state. That is to say, the rules of
procedure in a Florida court will vary
from those in a New York court, for
example. Though the rules of Florida
procedure will govern the administration
of a case brought in a Florida court,
this does not mean that Florida
substantive law will be applied to
decide the issue. It is possible that
the laws of another state will govern
the substantive issues presented for
decision. This could happen, for
example, if the the Florida court were
hearing a contract law dispute in which
the parties had selected the substantive
law of another state, such as New York
or Virginia, to govern their contract.
This could determine the outcome of the
case. For example, the statute of
limitations within which a contract law
action might be brought differ from
state to state. A Florida court might be
called upon to apply the substantive law
of New York or Virginia to decide the
question. Thus, a lawsuit brought in a
Florida court which was commenced in a
timely fashion under Florida substantive
law might need to be dismissed for being
commenced too late if the court applied
the statute of limitations of Virginia
to the dispute because Virginia has a
shorter statute of limitations for
contract actions. See Capital
One Bank USA NA v. Gregorich. For
a slightly difference analysis of the
same type of problem (with the same
result) consider Capital
One
Bank v. McGurk. Choice of law
provisions, among other types of
sections, are often included in standard
form contract language which often
receives little attention from the
parties in a particular transaction. As
you can see, this was a mistake for
Capital One. Capital One's lawyer's
simply chose Virginia law to apply to
all their credit card agreements
nationwide probably because Capital One
is headquartered in Virginia and the
lawyers who drafted the agreement form
were admitted to practice law in the
State of Virginia. As a matter of
vocabulary, in the United States
standard form contract language, which
often appears in pre-printed forms, is
referred to as "boilerplate" or
"boilerplate language."
Long-arm jurisdiction and its limits
People also wonder whether they might
be called into court in a far away or
inconvenient forum to answer for alleged
harms they may have caused to others in
cases where they have not contracted
(for example, if they are alleged to
have injured another party) or where
they might sue another party who is
alleged to have injured them. Consider,
for example, a resident of California
who is injured in a hotel in Florida.
Can the California resident return home
to Los Angeles and sue the Florida hotel
in a court located in Southern
California? Suits that attempt to bring
a person from one state to answer in the
court of another state are generically
called "long-arm statutes." This
possibility creates a great deal of
uncertainty which can not be managed by
contract because there may be no
contract between the parties (or, at
least, no contract which settles these
issues). Here, the U. S. Supreme Court
has stepped in to specify, on "due
process" grounds, the limits on the
ability of a party to be forced to
answer in the court of another state.
Please read the case at this
link about the long-arm statute in
Florida in the age of the internet. For
an attempt at an extreme use of long-arm
jurisdiction, consider Daimler
AG
v. Bauman (we will look at this
case in more detail later in the
semester so simply look at briefly to
get an idea for the type of problem that
long-arm jurisdiction can create here on
an international level). A Harvard Law
Review analysis of Bauman appears here.
Forum Shopping and Federalism
The presence of multiple court systems
and multiple variations in law from
state to state, create the possibility
of forum shopping--that is, the practice
in which a plaintiff will attempt to
determine which procedural and
substantive laws thoughout the United
States are most favorable to its case,
and then follow up by filing suit in a
court in that state. Moreover,
there is the possibility that a
plaintiff might determine that it is
better off from a litigation standpoint
in a Federal court than in a state
court. If it satisfies the
jurisdictional requirements to file suit
in Federal court, it may do so. We
will pay additional attention to
problems associated with forum shopping
in a later class, but it bears
mentioning because the practice of forum
shopping thrives in a federal system
like that found in the United States
(though one finds similar problems in
trans national litigation. You may
skim the article Forum
Shopping and the Infrastructure of
Federalism for a brief overview of
the issues involved.
For a brief comparison of differences
between the federal courts and the state
courts, read the following link:
[ http://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-courts
]
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