M4 T2 USA legal system: sources of law

Question 1

What is the primary source to study?

Answer 1

The 1789 Constitution

Question 2

Which legal text forms the backbone of the country’s entire juridical/political structure?

Answer 2

Their Magna Carta

Question 3

What is the relationship between case law and legislation?

Answer 3

there is a clear equilibrium between the case law and the need for renovation through legislation

Question 4

From where does the American Common law stem from?

Answer 4

Custom and usage and from judgements handed down by English judges and then by American judges after independence.

Question 5

Does the source of American common law operate on a dual basis in the US?

Answer 5

There are Common law for each, however, on the principle of shared identity, the supreme court has affirmed that the nature of these are sufficiently proximate for it to be possible to talk about American Common law in singular

Question 6

How is equity applied in the US?

Answer 6

Similar to England, Common law and equity are applied without distinction in US courts. There have been fusions between cases based on one or the other source, but judges know well which source it stems from.

Question 7

What can we find in the constitution?

Answer 7

It specifies the principle organs of the State, and the fundamental rights of the citizens.

Question 8

4 main features of the constitution

Answer 8

1. It is very brief: seven original articles and twenty-seven amendments.
2. pragmatic and dominates over ideology.
3. Flexibility and ease of amendments
4. Uses a clear language, in accord with the ideas of enlightenment.

Question 9

The seven original articles of the constitution

Answer 9

1. Legislative power
2. Executive power
3. Judicial power
4. Relationship among states
5. Amendment procedure
6. Recognition of the constitution as the supreme law and requirement that all public servants should take ouaths in support of the constitution and defend it.
7. ratification process

Question 10

What do the Amendments I-X, known as the “Bill of Rights,” entail?

Answer 10

restrictions on the powers of the US federal Government with respect to citizens

Question 11

What do the amendments that are not considered under the Bill of Rights entail?

Answer 11

They are of organisational nature or deal with the protection of the individuals against the power of the state

Question 12

Why can we say that the Constitution presents a prudent equilibrium?

Answer 12

1. Blends society’s need for order with the freedom of citizens
2. balances the powers of the federated states with the federal state

Question 13

What is found within federal statutory law?

Answer 13

1. Laws created in Congress
2. Regulations and resolutions issued by federal administrative agencies.
3. International treaties

Question 14

Which legal sources define the federal legislative ambit of jurisdiction?

Answer 14

Amendment X limits the federal authority to the powers delegated to the federal State by the Constitution and those that are denied to the federated states.

Case law created by the Supreme Court demarcated the ambit of jurisdiction. It has extended the powers of the federal State within the ambit of the Constitution.

Question 15

What can we find in the federated state’s statutory law?

Answer 15

1. laws passed by the legislative assemblies

2. regulations and resolutions issued by administrative agencies at state level

Question 16

Which legal sources define the federated legislative ambit of jurisdiction?

Answer 16

Constitution and case law issued by the Supreme Court

Question 17

What is one of the most important works of The National Conference of Commissioners on Uniform State law?

Answer 17

Uniform Commercial Code

Question 18

Why was The National Conference of Commissioners on Uniform State law established?

Answer 18

to analyse different state laws and find common principles to draft a Uniform State law to be passed by various states

Question 19

Do different state legislations share common interests?

Answer 19

Yes. they are similar both in letter and in spirit

Question 20

To which courts are precedents binding?

Answer 20

To the court which has issued the judgment and on lower courts. Not on courts of higher or the same hierarchical level.

Do not bind the courts of other federated states.

Question 21

Which distinction can be made in the case law?

Answer 21

Those that are of binding precedent and those that are merely persuasive

Question 22

When can custom and usage be applied as a source?

Answer 22

1. sense of compulsory obligation to follow the custom
2. Sufficient time must have elapsed
3. The regulatory content of the custom must be clear
4. Must be reasonable
5. Must be generally known by those to whom it applies

Question 23

Which is the main field of law to be covered by custom and usage as a legal source?

Answer 23

Commercial law. Ex in the interpretation and completion of contracts.