M4 T1 The USA legal system Historical evolution and federalism

Question 1

What is a fundamental principle in the system?

Answer 1

Federalism

Question 2

What is the political organization of the USA?

Answer 2

federal constitutional republic

Question 3

What are the roots of the US legal system?

Answer 3

English common law

Question 4

6 characteristics that are differentiated from the English law

Answer 4

1. It has a written and closed constitution like the European continental constitutions
2. Its Federalism has shaped its legal system.
3. It has a stronger equilibrium between legislation and case law
4. Legal education is also strongly practical, but not like in the Inns of court as in England
5. the USA recognizes the principle of binding precedent, but the theory has evolved differently.
6. Embodies the codification tradition

Question 5

How were disputes with the natives solved when the first settlers came to the US?

Answer 5

by reference to the bible or by force, hardly ever using courts or lawyers using the common law.

Question 6

Why can we see the impacts of both the common law and the continental law in the US?

Answer 6

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.

Question 7

Why did the settlers begin to apply the common law?

Answer 7

The increase of trade in the 18th century had them understand that they needed a system of order and security.

Question 8

What was issued on the 4th of July in 1776, and by whom was it made?

Answer 8

A Declaration of Independence. Representatives were mainly lawyers.

Question 9

What was the outcome of the 1787 Philadelphia convention?

Answer 9

The Federal Constitution

Question 10

Who can become a lawyer in the US?

Answer 10

Anyone. Based on the egalitarian principle

Question 11

How did they think judges should be elected?

Answer 11

by suffrage

Question 12

The US law is;

Answer 12

particular, an original legal system

Question 13

Who determines how far the Indian tribe’s sovereignty reaches?

Answer 13

The US congress

Question 14

When does Indian sovereignty reside?

Answer 14

misdemeanors in Criminal matters committed by Indians. More serious offenses is reserved to the US federal courts

Question 15

What is the particular nature of the federal political system?

Answer 15

There are two levels of sovereignty or shared political power, giving rise to a parallel structure of political power.

1. The Federal state
2. The federated

Question 16

What is the parallel structure of the legislative branch?

Answer 16

Power

1. US congress
2. 50 legislative assemblies

Question 17

What is the parallel structure of the executive branch?

Answer 17

Power

1. US president
2. 50 governors

Source

Question 18

What is the parallel structure of the judicial branch?

Answer 18

Power

1. Federal courts
2. State courts

Question 19

Sources of the US system

Answer 19

Constitution

1. US constitution
2. 50 state constitutions

Legislation

1. Federal legislation
2. 50 state legislation

Case law

1. case law from federal courts
2. case law from federated state courts

Question 20

How is the relation between federal law and federated law?

Answer 20

in the judgment of the Chief Justice Marshall in the 19th century; supremacy of federal law with respect to state law.

Question 21

How is the jurisdictional competence divided between the two levels of power?

Answer 21

Federal State
Exceptional legislative competence. On a small number of matters.

Federated states
any matter not exclusively reserved to the federal state

Question 22

Which level of power has the general competence in matters of human rights?

Answer 22

The Federal state

Question 23

can some judicial competencies be shared between the two levels of power?

Answer 23

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.

Question 24

3 examples of Federal state judicial competencies

Answer 24

1. Defence
2. Foreign affairs
3. Foreign and inter-state trade and commerce

Question 25

3 examples of federated state judicial competencies

Answer 25

1. Civil law (contracts, family)
2. Criminal law
3. Mercantile law (intra-state trade, corporate law)