M4 T2 USA legal system: sources of law Flashcards
What is the primary source to study?
The 1789 Constitution
Which legal text forms the backbone of the country’s entire juridical/political structure?
Their Magna Carta
What is the relationship between case law and legislation?
there is a clear equilibrium between the case law and the need for renovation through legislation
From where does the American Common law stem from?
Custom and usage and from judgements handed down by English judges and then by American judges after independence.
Does the source of American common law operate on a dual basis in the US?
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
How is equity applied in the US?
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.
What can we find in the constitution?
It specifies the principle organs of the State, and the fundamental rights of the citizens.
4 main features of the constitution
- It is very brief: seven original articles and twenty-seven amendments.
- pragmatic and dominates over ideology.
- Flexibility and ease of amendments
- Uses a clear language, in accord with the ideas of enlightenment.
The seven original articles of the constitution
- Legislative power
- Executive power
- Judicial power
- Relationship among states
- Amendment procedure
- 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.
- ratification process
What do the Amendments I-X, known as the “Bill of Rights,” entail?
restrictions on the powers of the US federal Government with respect to citizens
What do the amendments that are not considered under the Bill of Rights entail?
They are of organisational nature or deal with the protection of the individuals against the power of the state
Why can we say that the Constitution presents a prudent equilibrium?
- Blends society’s need for order with the freedom of citizens
- balances the powers of the federated states with the federal state
What is found within federal statutory law?
- Laws created in Congress
- Regulations and resolutions issued by federal administrative agencies.
- International treaties
Which legal sources define the federal legislative ambit of jurisdiction?
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.
What can we find in the federated state’s statutory law?
- laws passed by the legislative assemblies
2. regulations and resolutions issued by administrative agencies at state level
Which legal sources define the federated legislative ambit of jurisdiction?
Constitution and case law issued by the Supreme Court
What is one of the most important works of The National Conference of Commissioners on Uniform State law?
Uniform Commercial Code
Why was The National Conference of Commissioners on Uniform State law established?
to analyse different state laws and find common principles to draft a Uniform State law to be passed by various states
Do different state legislations share common interests?
Yes. they are similar both in letter and in spirit
To which courts are precedents binding?
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.
Which distinction can be made in the case law?
Those that are of binding precedent and those that are merely persuasive
When can custom and usage be applied as a source?
- sense of compulsory obligation to follow the custom
- Sufficient time must have elapsed
- The regulatory content of the custom must be clear
- Must be reasonable
- Must be generally known by those to whom it applies
Which is the main field of law to be covered by custom and usage as a legal source?
Commercial law. Ex in the interpretation and completion of contracts.
