Kara Sears
The United States' legal system is largely based on English common law, which is a system of law derived from judicial decisions instead of from statutes. American courts initially fashioned common law rules based on English common law, but the American legal system has since matured and can now create common law rules from direct precedent or by analogy to comparable areas of decided law. The US and England have many legal differences, and their legal systems have diverged so greatly over time that they are sometimes described as two countries separated by a common law.
| Characteristics | Values |
|---|---|
| Basis of US law | Common law derived from English law |
| US legal system | Fashioned after the British legal system |
| US jury trials | Fashioned after British jury trials |
| US law | Consists primarily of state law |
| Federal law | Consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law |
| US and English law | Differ greatly in many areas |
| US public figures | Cannot sue for honest but unfair and untrue criticisms of their activities |
| Divorce law | Some American states have eliminated fault grounds entirely |
| Divorce law | Some American states adhere to the principle of equal division of assets |
| US law | Does not have a plenary reception statute at the federal level |
| US law | Uses Skidmore deference |
| US law | Does not use Chevron deference |
| US law | Uses code pleading in 27 states |
| US law | Uses modern notice pleading in most states |
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What You'll Learn
US law and English common law differences
The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law. However, the US legal system has diverged from its parent system over time, and in many areas, the legal approaches of common-law countries differ as much from one another as they do from civil-law countries. The US and England are sometimes described as "two countries separated by a common law".
One of the most striking differences between the two systems is in the area of public law. England has no written constitution and restricts judicial review, whereas every court in the United States has the power to pass judgment on the conformity of legislation and other official actions to the constitution.
Another notable difference is in the field of libel. US practice is less strict than English law. In the US, public figures cannot sue for honest but unfair and untrue criticisms of their activities, whereas in England, published facts must be true and comments fair. In some Australian states, truth is not necessarily a defence. A notable US tort is interference with privacy, which includes using a person's photograph for advertising without permission, electronic eavesdropping, or taking photographs of persons in embarrassing situations. In England, privacy is seen as related to commercial considerations; it is possible to buy privacy but not to enjoy it as a right.
In the area of divorce law, the intense legislative activity of the 1960s and ’70s left most common-law countries with systems of “mixed grounds” for divorce. While one can obtain a divorce based on the fault of the other spouse or upon some no-fault ground, some American states have eliminated fault grounds entirely. Most common-law countries follow the English model that permits judges to use their own discretion in reallocating the property and income of the spouses, whereas some American states adhere to the principle of equal rather than discretionary division of assets.
The US legal system is fashioned after the British legal system, and many of the fundamental principles of injury law, or “Tort Law”, come directly from England. Jury trials in the US are also fashioned after British jury trials, with both sharing several key elements, such as a presiding judge, prosecutor, defence counsel, witnesses, and a court stenographer.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
US public law
The US legal system is rooted in English common law, which is a body of law based on the English legal system and developed through judicial decisions and customs rather than statutes. Common law is deeply rooted in stare decisis, meaning that courts follow precedents established by previous decisions. While the US and English legal systems share this common law heritage, they have diverged significantly over time, particularly in the area of public law. For example, England has no written constitution and restricts judicial review, whereas the US Constitution is the supreme law of the land, and every court in the US has the power to pass judgment on its provisions.
Another key difference between the two systems is in the area of divorce law. While most common-law countries follow the English model that allows judges to use their discretion in reallocating property and income during a divorce, some American states adhere to the principle of equal division of assets. Additionally, in libel cases, US practice is less strict than English law, as public figures in the US cannot sue for honest but unfair and untrue criticisms of their activities.
In terms of the legislative process, after a bill is signed into law by the President, it is delivered to the Office of the Federal Register (OFR), where it is assigned a Public Law Number and prepared for publication as a Slip Law. The final version of the law is published in the Federal Register and codified into the Code of Federal Regulations (CFR). These regulations may be considered by courts as persuasive authority in interpreting statutes, but they do not carry the same weight as federal statutes.
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US libel law
In the US, libel is a type of defamation expressed in print, writing, pictures, signs, or any other tangible form that harms a person's reputation, exposes them to public hatred or contempt, or causes harm in their business or profession. Libel laws in the US have historically been at odds with the First Amendment's guarantees of freedom of speech and freedom of the press, which offer defendants some protection from defamation lawsuits.
The US Supreme Court has ruled that the First Amendment limits the ability of states to award damages in libel cases. This was established in the landmark case New York Times Co. v. Sullivan (1964), where the Court held that public officials could only win a libel suit if they could prove that the defendant knew the information was false or showed reckless disregard for the truth. This ruling set a precedent for libel law in the US, requiring proof of "actual malice" for public officials and public figures to be compensated for defamation.
While libel law in the US has traditionally been governed by state law, there is variation among states in how they define and prosecute libel. Some states have criminal libel laws, but these are rarely enforced, and Washington State has ruled its criminal libel statute unconstitutional. Most defamation lawsuits in the US involve newspapers or publishers as defendants and corporations, businesspeople, public figures, or people involved in criminal cases as plaintiffs.
In summary, US libel law has evolved from English common law but has diverged significantly over time, particularly in the area of public law. The US Supreme Court's interpretation of the First Amendment's protections for free speech and press has been instrumental in shaping US libel law, often in ways that differ from English legal practice.
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US divorce law
US laws are largely derived from the common-law system of England, but the two countries' legal systems have diverged so greatly over time that they are sometimes described as "two countries separated by a common law".
Divorce in the United States is governed by state law, rather than federal law. The US court system recognizes two overarching types of divorce: absolute divorce and limited divorce. Absolute divorce, or "divorce a vinculo matrimonii", is a judicial termination of a legal marriage that reverts both parties to singlehood. A limited divorce, or "divorce a menso et thoro", terminates the right to cohabitate but does not officially dissolve the marriage. Some states also permit conversion divorce, which transforms a legal separation into a divorce after a prescribed period.
In the past, absolute divorce required a showing of fault, such as adultery or domestic abuse. However, all states have now enacted no-fault divorce statutes, with California being the first state to do so in 1969. No-fault divorce allows a party to obtain a divorce without establishing misconduct by the other party, although some states require a reason to be cited, typically "irreconcilable differences".
The rules for the division of assets in a divorce vary between states. Most states follow the equitable distribution rule, which allows a judge to divide property according to what is deemed a "fair allocation", rather than a strictly equal split. In contrast, community property states divide marital property equally between spouses. These include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Family courts also resolve child custody issues during divorce proceedings. Both spouses typically have joint guardianship and equal rights to custody. Courts may order one spouse to pay alimony to the other, as well as child support if the couple has children.
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US jury trials
The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law. However, the US legal system, rooted in English common law, has diverged from its parent system over time. In many areas, the legal approaches of common-law countries differ as much from one another as they do from civil-law countries. For example, the US Constitution grants states the power to grant their citizens broader rights than the federal Constitution, as long as they do not infringe on any federal constitutional rights.
A petit jury, or trial jury, is the standard jury type in criminal cases in the US. They consist of 12 people, and their deliberations are private. Their decision is known as a verdict and decides whether a person is guilty or not guilty. In federal criminal trials, the jury must reach a unanimous decision to convict the defendant. In the event of a hung jury, charges against the defendant are not dropped and can be reinstated if the government so chooses.
The right to a jury trial is guaranteed by the Sixth Amendment and Article Three of the US Constitution. The Supreme Court incorporated this right against the states in Duncan v. Louisiana in 1968. Most states' constitutions also grant the right of trial by jury in lesser criminal matters, though most have eliminated that right in offenses punishable by a fine only. No jury trial is required when the maximum sentence is six months in jail, a fine not exceeding $1,000, a 90-day driver's license suspension, and attendance at an alcohol use disorder education course.
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Frequently asked questions
Yes, the US legal system is fashioned after the British legal system. The law of the United States is largely derived from the common law system of England.
Common law is a body of law based on the English legal system, as distinct from a civil-law system. It is derived from judicial decisions instead of statutes.
While the US has its own common law, it is based on English common law. At the state level, legislatures codify common law rules from the courts, which can give the rule permanence, modify it, or replace it entirely with legislation.
One example is in the area of libel law. In the US, public figures cannot sue for honest but unfair and untrue criticisms of their activities, whereas in England, published facts must be true and comments fair. Another difference is in the treatment of the economic consequences of divorce. While most common-law countries follow the English model, some American states adhere to the principle of equal division of assets.
Yes, there are similarities in the basic principles of property and succession, contract law, and jury trials.
