Chapter Overview

Legal rules bind both government and citizens by defining the boundaries of acceptable behavior, establishing the power and range of punishment, and dictating procedures for creating, applying, interpreting, and changing the law. Well-crafted laws are clear and tailored to address identified harms or advance particular government or societal interests. Built-in procedures discourage rapid revolutionary change in the law while permitting legal flexibility in response to evolving needs and concerns.

In the United States, laws come from six sources. Federal and state constitutions establish government structure, responsibilities, and power. Constitutions are the highest law of the land. Congress and the legislatures of every state, city, and county enact statutes. All statutes are codified. Courts determine the meaning of statutes through the process of statutory construction. Equity and common laws are judge-made laws and are not compiled into books. Judges create equity law when they issue orders or injunctions to solve a specific problem. The common law has developed through the body of judicial decisions that rely on precedent and tradition to determine the outcome of disputes. The authority of administrative agencies is established by statute to oversee complex areas that require special expertise. Thousands of executive branch administrative agencies establish legal rules that determine everything from the definition of false advertising to the number of different media a given corporation can control. Executives at each level of the government issue orders that have the force of law.

The United States has many court systems – the federal system, one system for each state; the courts of the District of Columbia and the territories; as well as the military court system. Court systems have three levels, that is, trial courts, intermediate appellate courts, and Supreme Courts.

Trial courts review the evidence, or facts, to determine the proper outcome of a case. Both levels of appellate courts review the legal basis for the decisions of lower courts.

State and federal courts function largely independently of each other. The federal Constitution establishes the U.S. Supreme Court and provides for other federal courts to oversee questions related to international, interstate, and federal law. The U.S. Supreme Court has power to review the constitutionality of final rulings of the highest state courts. State courts are established by the relevant state constitution and have jurisdiction over issues arising with in the state and relating to state law. New technologies raise challenges to the determination of court jurisdiction because the Internet, for example, transcends traditional jurisdictional boundaries.

Trial courts are the entry level for most legal disputes. Some disputes are heard first by an administrative agency, and, on very rare occasions, a case may originate in the Supreme Court. Trial courts are fact-finding forums and are the only courts to use juries. Appellate courts, including the 13 federal circuit courts of appeal, generally defer to the trial court on matters of fact to review the legal process of the lower court. Most rulings of federal courts of appeals are handed down by a three-judge panel, but courts sometimes review important cases en banc, that is, all judges in a circuit rule on a case. Majority opinions of a court of appeal establish binding precedent within the court’s jurisdiction. Appeals courts can affirm, reverse, or remand the decision of the lower court. Individual judges may join the opinion of the court, write a separate concurrence reaching the same decision but for different reasons or dissent from the court’s opinion.

The Supreme Court is the court of last resort, and in most instances it has discretion to determine what cases to review. The Court’s nine justices are appointed by the president and approved by the U.S. Senate. The justices serve for life or until they resign or are removed through an impeachment process. Most cases reach the Court through a petition for certiorari. Typically the Court grants fewer than 5 percent of the writs for certiorari it receives. It reviews cases based on written legal briefs and oral arguments by the attorneys for the two sides. Court decisions may be presented as relatively short memorandum orders, unsigned per curiam opinions, or signed opinions of the Court.

More than 200 years ago, the U.S. Supreme Court granted itself the power to review the constitutionality of laws and government actions. The Court said the power of judicial review was embedded in the Constitution’s balance of power and was an essential means to maintain the rule of law and check abuse of power by the other two branches of government. Through judicial review, courts have the power to interpret constitutions and to determine when government actions are invalid because they fail to meet constitutional requirements. State courts rarely exercise their power of judicial review, and the U.S. Supreme Court prefers to use this power sparingly. Controversy surrounds the Court’s exercise of judicial review because of the political appointment of justices and the argument that the justices’ political philosophies inappropriately influence the Court’s decisions.

Lawsuits are either criminal or civil. In criminal cases, the government brings an action against an individual for violating a criminal statute. Crimes may be punished by fines and/or jail time. In a civil lawsuit, a private individual (the plaintiff) initiates the process by filing a complaint alleging the defendant caused some harm for which he or she should be held legally responsible. Civil suits generally seek monetary damages to compensate the plaintiff and to penalize the individual responsible. Both criminal and civil suits involve a variety of pretrial processes, and juries hear both types of cases. Jurors are called and questioned through voir dire, which provides an opportunity for attorneys to remove jurors for cause if the jurors are not able to render a decision based only on the facts presented in court. Attorneys may also remove potential jurors through peremptory challenges without showing cause. Cases are decided either when a jury reaches a verdict or, in the case of a bench trial, the judge issues a judgment. Either outcome may be appealed. Judges may dismiss cases that do not present a material issue or grant summary judgment when uncontested facts clearly support one side.

In a step forward for equal justice, a 2013 Supreme Court decision curtailed forum shopping, which permits plaintiffs to select the court in which they believe a favorable outcome is most likely. The decision in Daimler AG v. Bauman effectively limits lawsuits against media companies to either the locale where the company is incorporated or where it conducts its main business.

The law in all its forms is a rich topic for research. Many online sources and databases supplement and ease legal research once conducted exclusively in the numerous volumes held by legal, academic, and government libraries. Law review articles are extremely valuable aids to legal research, as are legal encyclopedias. Legal researchers must be able to read and analyze case law. A three-step process of pre-reading, skimming, and close reading helps those new to the law identify the important elements of case decisions. Creating case briefs, using the FIRAC method, helps clarify the key points of important court decisions.


I. Body of the Law

  1. Constitutions
  2. Statutes
  3. Common Law
  4. Equity Law
  5. Administrative Rules
  6. Executive Orders

II. Structure of the Judicial System

  1. Jurisdiction
  2. Trial Courts
  3. Courts of Appeal
  4. The U.S. Supreme Court

III. Processes of the Law

  1. Civil Suits
  2. Summary Judgment

IV. Finding the Law

  1. Useful Legal Research Resources

V. Reading Case Law

  1. Briefing Cases
  2. Analyzing Marbury v. Madison