Monday, August 22, 2016

Law of the United States: Sources & Hierarchy

Sources and Hierarchy of Law
I. United States Constitution
II. Federal Statutes, Treaties, and Court Rules.
III. Federal Administrative Agency Rules and Regulations.
IV. Federal Common Law.
V. State Constitutions.
VI. State Statutes and Court Rules.
VII. State Agency Rules.
VIII. State Common Law and Case Law.
IV. City and County Ordinances.

I. United States Constitution
The U.S. Constitution is the supreme law of the United States. The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.

A. Preamble - is a brief introductory statement of the Constitution's fundamental purposes and guiding principles

B. Articles - The Articles provide for how the government is to work. The first three articles establish the doctrine of the separation of powersArticle I establishes the legislative branch, Article II the executive and Article III the judicial. Article IV discusses the relationship between states and the federal government. Article V the process of amending the constitution. Article VI states that the Constitution is the Supreme law of the land. Article VII addresses ratification of the Constitution.

C. Amendments - There are twenty seven amendments to the constitution, the first ten of which are known as the Bill of Rights

II. Federal Statutes, Treaties and Court Rules
A. Federal Statutes - the Code of Laws of the United States of America (The United States Code, U.S.C.) is the official compilation and codification of the general and permanent federal laws of the United States. It contains 51 titles (along with a further four proposed titles). The main edition is published every six years. The current edition of the code was published in 2012, and is over 200,000 pages long. The official version of those United States Acts not codified in USC can be found in United States Statutes at Large.
    • Codification Process - Essentially, Congress presents a bill (enrolled bill) to the President. If approved (enacted), copies of the bill are distributed known as slip laws. These slip laws are assembled into annual volumes and published as the United States Statutes at LargeEvery six years the United States Code is republished to incorporate additions and changes resulting from the new laws in the United States Statutes at Large.
    • Organization - There are currently 51 titles. Titles may or may not be divided into subtitles, chapters, parts, etc. All titles have sections (represented by a §), as their basic coherent units. Sections are often divided into subsections, paragraphs and clauses.  Not all titles use the same series of subdivision above the section level and they may arrange them in different order. As an example, here is how Title 26 (the tax code) is organized.

The following is the list of titles which have been enacted into positive law and those which have been repealed.
Title 1General Provisions
Title 2The Congress
Title 3The President
Title 4Flag and SealSeat of Government, and the States
Title 5Government Organization and Employees*
Title 6
Surety Bonds (repealed)
(Enacted into positive law by the 80th Congress in 1947; combined into Title 31 when it was enacted into positive law.)
Title 6Domestic Security
Title 7Agriculture
Title 8Aliens and Nationality
Title 9Arbitration
Title 10Armed Forces (including the Uniform Code of Military Justice)
Title 11Bankruptcy
Title 12Banks and Banking
Title 13Census
Title 14Coast Guard
Title 15Commerce and Trade
Title 16Conservation
Title 17Copyrights
Title 18Crimes and Criminal Procedure*
Title 19Customs Duties
Title 20Education
Title 21Food and Drugs
Title 22Foreign Relations and Intercourse
Title 23Highways
Title 24Hospitals and Asylums
Title 25Indians
Title 26Internal Revenue Code
Title 27Intoxicating Liquors
Title 28Judiciary and Judicial Procedure
Title 29Labor
Title 30Mineral Lands and Mining
Title 31Money and Finance
Title 32National Guard
Title 33Navigation and Navigable Waters
Title 34Navy (repealed all of Title 34 in 1956 when Navy was moved into Title 10 subtitle C)
Title 35Patents
Title 36Patriotic Societies and Observances
Title 37Pay and Allowances of the Uniformed Services
Title 38Veterans' Benefits
Title 39Postal Service
Title 40Public Buildings, Properties, and Works
Title 41Public Contracts
Title 42The Public Health and Welfare
Title 43Public Lands
Title 44Public Printing and Documents
Title 45Railroads
Title 46Shipping
Title 47Telecommunications
Title 48Territories and Insular Possessions
Title 49Transportation
(enacted into positive law in stages; Title IV in 1978, Title I in 1983, and Titles II, III, and V-X in 1994)
Title 50War and National Defense
Title 51National and Commercial Space Programs
Title 52Voting and Elections
Title 54National Park Service and Related Programs
Source: Wikipedia: United States Code

B. Treaties
Treaties are agreements between the United States and one or more other countries. Under Article II, Section 2 of the Constitution, the President has authority to make treaties, with the “advice and consent” of the Senate.
    • a distinction is made between the terms treaty and agreement. The word treaty is reserved for an agreement that is made by and with the Advice and Consent of the Senate (Article II, section 2, clause 2 of the Constitution). Agreements not submitted to the Senate are known as executive
    • Treaties and international agreements since 1950 are published annually in the United States Treaties and Other International Agreements.

C. Court Rules
Court rules prescribe procedures for practice in the courts. They dictate such matters as how to file a law suit, what evidence is admissible at trial, and what are grounds for appeal. 

In the federal system, the Supreme Court of the United States promulgates court rules for itself and the lower federal courts under the authority of 28 U.S.C. § 2072.

There are rules of general applicability, which apply in all of the federal courts at a given level , and local rules that apply only in the individual courts which have adopted them.

The following are the major areas of federal rules 
  • Rules of the Supreme Court
  • Federal Rules of Appellate Procedure
  • Federal Rules of Civil Procedure
  • Federal Rules of Criminal Procedure
  • Federal Rules of Evidence
  • Federal Local Court Rules
               Georgetown Law Library

III. Federal Administrative Agency Rules & Regulations
The Code of Federal Regulations (CFR) is the codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government of the United States. The CFR is divided into 50 titles that represent broad areas subject to federal regulation.

Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. It is the body of court decisions which is generally limited to interpreting the Constitution and federal statutes (Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938)). Once a judge interprets an existing law, a precedent is set which is binding on all courts at the same level or lower within the jurisdiction. This is known as the doctrine of stare decisis.
  • Case Citation - A citation is a reference used to identify past court decisions. It consists of a volume number, an abbreviation of the title of the book or other item, and a page number. For example, the citation 265 U.S. 274 can be broken into the following parts: Volume number: 265, Abbreviation for the book: U.S. Reports, Page number: 274.
  • Parallel Citation - When the same case is printed in different books, citations to more than one book may be given. These additional citations are known as parallel citations.Example: 265 U.S. 274, 68 L. Ed. 1016, 44 S. Ct. 565. Georgetown Law Library
  • Research - Common law is officially published in books called reporters. Federal Reporters include:
          Abbreviation                         Reporter Name & Content
              U.S.                                        United States Reports (Supreme Court Opinions - Official)
              U.S. L. Ed., L. Ed. 2d             United State Supreme Court Reports / Lawyer’s Edition (Supreme Court Opinions - Lexis)
              S. Ct.                                      Supreme Court Reporter (Supreme Court Opinions - West)
              F.                                            Federal Reporter (1st: Federal district and appellate court opinions (to 1925))
              F. 2d                                       Federal Reporter (2nd: Federal appellate court opinions(1925-1993))
              F. 3d                                       Federal Reporter (3rd: Federal appellate court opinions(1993- ))
              F. Supp.                                  Federal Supplement (1st: Federal district court opinions(1931-1998))
              F. Supp. 2d                             Federal Supplement (2d: Federal district court opinions(1998- ))
              F. App.                                    Federal Appendix (Federal appellate court opinions (not reported in F.3d) (2001- ))

V. State Constitutions
In the U.S., each state has its own constitution which is supreme within the state to the extent that they do not violate the U.S. Constitution or federal law. Though state constitutions share many common elements with the US Constitution, they tend to be longer and more detailed. For instance, the average length of a state constitution is 26,000 words compared to about 8,700 words for the U.S. Constitution. The longets sate governing document is that of Alabama which is over 172,000 words. It also the most amended with over 770 amendments.  Ballotpedia
  • Federalism - refers to the sharing of power between the national and state (and local) governments. See Federalism for more info

VI. State Statutes and Court Rules

1. State Statutes - Like federal laws, laws passed by the legislatures of the 50 states and U.S. territories, e.g., Puerto Rico, are available in unannotated form. The laws are first published chronologically as session laws and then codified into the state legislative codes.
2. Court Rules - As at the federal level, state court rules prescribe procedures for practice in the courts. They are generally organized similar to the federal court rules. For example, in Kentucky there are Kentucky Supreme Court Rules, Kentucky Rules of Evidence, Kentucky Rules of Criminal Procedure, Kentucky Rules of Civil Procedure, Family Court Rules of Procedure and Practice, etc.

VII. State Agency Rules
Like the federal government, states have their own administrative law. 

Proposed rules and regulations are typically first published in a 'Register', 'Bulletin' or 'Journal.' Rules which are passed are usually codified by topic in a 'Code' book.
  • In Kentucky, new rules are first proposed in the Administrative Register of Kentucky (ARK). Passed rules are published in the Kentucky Administrative Regulations (KAR).

VIII. State Common Law and Case Law

IV. City and County Ordinances

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