Presentation Transcript

1. Advanced Legal English403

   The American Legal System Part IV Dr Myra Williamson Assistant Professor of Law KiLAW Fall 2012
2. Overview Federalism  The powers of federal and state governments The Federal Government and the Legal System  State Government and the Legal System (how laws are made)
3. State Government and the Legal System Each state in the United States of America has the power to determine the type of government that exists within its own state boundaries State governments are NOT part of the federal government Each state has its own separate and largely independent government Mainly, state governments follow the structure of federal government
4. State government Just like federal government, all states have an executive, a legislature and a judiciary The executive = headed by a governor Legislature = usually bicameral (2-house) structure Judiciary = courts (see end of slideshow 4) The role of each branch mirrors that of the role at federal level The purpose of dividing power into 3 branches is the same as for federal government (to prevent the concentration of governmental power and to provide ‘checks and balances’)
5. Example…the state of California It has three branches of government Executive The governor plus other elected officers (the Lieutenant Governor is elected separately) Governor is elected by popular ballot, term of 4 years, renewable once Currently: Jerry Brown, previously Arnold Schwarzenegger Legislature = California State Legislature Upper House = California State Senate – 40 members Lower House = California State Assembly – 80 members Judiciary Supreme Court of California California Courts of Appeal (6) Superior Courts of California (58, one for each county) – interesting fact: the judges here are voted in, by the county voters, for 6 year terms Law comes from the Constitution, case law and statute law
6. Sources of law The law in the US is found in 3 places: the Constitution, Statute Law and Case Law This is the sameat state level AND at federal level There is the US Constitution and each state has its own constitution as well Primary purpose of the constitutions (state and federal) = establish a government and define its functions and obligations in relationship to the people
7. Federal Constitution Drafted in 1787 - Fully ratified by 1790 Established 3 parts of federal government: Art 1 = Legislature Art 2 = Executive Art 3 = Judiciary Also established the role of federal government in relation to state government (Art IV) The First 10 Amendments = the Bill of Rights eg. The First Amendment guarantees freedom of religion, freedom of speech, freedom of the press, freedom of assembly Today, it contains the original 7 articles + 27 amendments
8. US Constitution
9. Case law and statute law Case law = decisions made by the courts in individual cases Statute law = written laws passed by a legislative body Law comes from both these sources and (in the US) also from the Constitution
10. Case law Case law = originates in a disagreement between the parties Courts have the power to resolve the dispute The decision becomes part of the body of case law Precedent – because of the principle of stare decisis, like cases are decided alike Watch out for student presentations on precedent… Stare decisisalso means that lower courts must adhere to the decisions of higher courts – it is binding on them Binding case law = case law that must be followed by lower courts
11. Case law and statute law The Courts apply both constitutional and statutory law to factual situations The US Constitution is the supreme law of the land – no statute can be enacted which contradicts it The Supreme Court has the power to strike down legislation that conflicts with the Constitution
12. Statutory Law We already know that statutory law is the law that is enacted through the legislative process What is that process like in the US? Note: the state law-making process copies the federal process – so let’s just look at the federal law-making process
13. How does a bill become a law? It a lengthy process along these lines: Legislation proposed – by any member of Congress It can come from the Senate or from the House Bill is introduced – dropped in the “Hopper” Bill referred to a committee – consider whether its needed, report made on the bill, hearings held Bill voted on by legislators – debated in the House and voted upon Action by other house – both have to give it a majority vote, changes can be made by either house Executive options – President always knows its coming – will either sign, delay or not sign
14. The hopper - FYI
15. In other words… A bill must pass both houses (House of Representative and the Senate) to become a law* It must get a majority vote in favour in both houses If it does, it goes to the President If he signs it immediately, it becomes law (a statute) If he waits 10 days without signing, it automatically becomes law at the end of the 10 days If he doesn’t sign it (using the“veto”) it goes back to Congress. If it gets two-thirds vote in favour, then it will become law (even without the President signing it) More info: http://www.naeyc.org/policy/federal/bill_law And if you are really interested: http://thomas.loc.gov/home/lawsmade.toc.html
16. What next? Once a bill has become law, it gets sent to the Archivist who assigns it a number and publishes it Then it’s published in the Statutes at Large (a chronological compilation of all laws passed) Then it’s published in the US Code (a collection based on subject, complete with amendments) in the right subject area
17. Extra! Administrative regulations Sometimes there are special agencies or boards which have the power to make laws. eg. Tax board Sometimes there are special agencies or boards which have the power to handle disputes. eg. Workers injured on the job Both the federal and state agencies have the power to make rules and regulations that have the force of law – they are given that power by a legislature (state or federal) This is what is meant by administrative regulations
18. Conclusion The American legal system is operated by and through the government The system is based on the concept of federalism – the notion that citizens are subject to the rules of both a federal and a state government There are different federal and state governments There are different federal and state legal systems.
19. Conclusion Separate laws exist for both the federal and state legal systems The sources are similar for both: Federal sources of law: US Constitution, federal cases, federal statutes, administrative regulations State sources of law: state constitutions, state cases, state statutes We need to be aware of the relationship between state and federal legal systems and how they work