M4 T1 The USA legal system Historical evolution and federalism Flashcards
What is a fundamental principle in the system?
Federalism
What is the political organization of the USA?
federal constitutional republic
What are the roots of the US legal system?
English common law
6 characteristics that are differentiated from the English law
- It has a written and closed constitution like the European continental constitutions
- Its Federalism has shaped its legal system.
- It has a stronger equilibrium between legislation and case law
- Legal education is also strongly practical, but not like in the Inns of court as in England
- the USA recognizes the principle of binding precedent, but the theory has evolved differently.
- Embodies the codification tradition
How were disputes with the natives solved when the first settlers came to the US?
by reference to the bible or by force, hardly ever using courts or lawyers using the common law.
Why can we see the impacts of both the common law and the continental law in the US?
It was colonized by both England and European countries such as Spain, France and the Netherlands. Some states imported English legal texts while others shared in European intellectual currents such as the Enlightenment.
Why did the settlers begin to apply the common law?
The increase of trade in the 18th century had them understand that they needed a system of order and security.
What was issued on the 4th of July in 1776, and by whom was it made?
A Declaration of Independence. Representatives were mainly lawyers.
What was the outcome of the 1787 Philadelphia convention?
The Federal Constitution
Who can become a lawyer in the US?
Anyone. Based on the egalitarian principle
How did they think judges should be elected?
by suffrage
The US law is;
particular, an original legal system
Who determines how far the Indian tribe’s sovereignty reaches?
The US congress
When does Indian sovereignty reside?
misdemeanors in Criminal matters committed by Indians. More serious offenses is reserved to the US federal courts
What is the particular nature of the federal political system?
There are two levels of sovereignty or shared political power, giving rise to a parallel structure of political power.
- The Federal state
- The federated
What is the parallel structure of the legislative branch?
Power
- US congress
- 50 legislative assemblies
What is the parallel structure of the executive branch?
Power
- US president
- 50 governors
Source
What is the parallel structure of the judicial branch?
Power
- Federal courts
- State courts
Sources of the US system
Constitution
- US constitution
- 50 state constitutions
Legislation
- Federal legislation
- 50 state legislation
Case law
- case law from federal courts
- case law from federated state courts
How is the relation between federal law and federated law?
in the judgment of the Chief Justice Marshall in the 19th century; supremacy of federal law with respect to state law.
How is the jurisdictional competence divided between the two levels of power?
Federal State
Exceptional legislative competence. On a small number of matters.
Federated states
any matter not exclusively reserved to the federal state
Which level of power has the general competence in matters of human rights?
The Federal state
can some judicial competencies be shared between the two levels of power?
yes. Ex: jurisdiction on criminal matters is reserved for the federated states, but the federal state deals with those that are considered to be federal offenses.
3 examples of Federal state judicial competencies
- Defence
- Foreign affairs
- Foreign and inter-state trade and commerce
3 examples of federated state judicial competencies
- Civil law (contracts, family)
- Criminal law
- Mercantile law (intra-state trade, corporate law)
