Gavin Howe
The legal system in the United States is divided into several types of law, including criminal, civil, and administrative law. The U.S. Department of Justice categorizes four main types of legal systems: common law, civil law, religious law, and customary law, with the latter two being uncommon. The common law system, used in most former British colonies, is created by the judiciary and based on case law and judicial precedent. The civil law system, the most common globally, is statute-based. The United States also has federal and state laws, with the former originating from the Constitution and the latter varying by state. Within these systems, there are numerous fields of law, such as constitutional, corporate, environmental, tax, and real estate law, each with its own focus and applications.
| Characteristics | Values |
|---|---|
| Number of main types of law | 4: constitutional, statutory, administrative, and case (common) law |
| Basic divisions in the legal system | Criminal, civil, and administrative |
| Types of legal systems | Common law, civil law, religious law, and customary law |
| Types of fields | Real estate law, tax law, environmental law, civil liberties law, constitutional law, and corporate law |
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What You'll Learn
Civil law, including civil rights and liberties
Civil law in the United States concerns the rights and liberties of citizens, as outlined in the Constitution and its subsequent amendments. Civil liberties refer to the fundamental freedoms and protections against government actions, while civil rights refer to the positive actions the government should take to ensure equal conditions for all citizens.
The Bill of Rights, comprising the first ten amendments to the Constitution, forms the basis of most court decisions defining American civil liberties. These liberties encompass freedoms and rights guaranteed in the First Amendment, such as religion, speech, press, assembly, and petition. The Fourteenth Amendment further protects citizens against violations of rights and liberties by state governments. Civil rights, on the other hand, aim to protect citizens from unequal treatment based on certain characteristics, such as age, sex, ethnicity, and nation of origin. This includes protection against employment and housing discrimination and segregation.
Civil rights lawyers work to ensure that all individuals are treated equally under the law. They may handle a broad range of cases beyond the iconic civil rights movement, including issues of discrimination in employment, housing, and education. These lawyers often work for non-profit organisations like the ACLU, the Southern Poverty Law Center, and the Human Rights Campaign, addressing societal civil rights issues.
Constitutional law, though a slim field in terms of job opportunities, offers lawyers the chance to work intimately with the nation's framework. It provides an in-depth understanding of citizens' rights and how they intersect with civil and criminal law.
In addition to civil law, there are several other types of law practised in America. These include real estate law, environmental law, corporate law, and tax law.
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Criminal law, including criminal procedure
Criminal law in the United States is derived from several sources, including the Constitution, federal and state statutes, federal and state rules of criminal procedure, and case law. It is codified in Title 18 of the U.S. Code, which designates various conduct as federal crimes, such as arson, use of chemical weapons, kidnapping, and more. The federal government has also outlined specific procedures for criminal proceedings in the Federal Rules of Criminal Procedure.
Criminal cases are initiated by the government, typically through the U.S. Attorney's office, in coordination with law enforcement agencies. The U.S. Attorney acts as the prosecutor and presents evidence to a grand jury, which decides whether the evidence is sufficient to require a trial. During the trial, the burden of proof lies with the prosecution, which must prove beyond a reasonable doubt that the defendant is guilty. The defence has no burden of proof and is presumed innocent throughout the trial. The judge instructs the jury on relevant legal rules before they deliberate on the defendant's guilt.
If the defendant is found not guilty, they are released, and the government may not appeal the decision. The Constitution prohibits "double jeopardy," preventing an individual from being tried twice for the same offence. If found guilty, the judge determines the sentence, which may include prison time, fines, or restitution to victims. The court's probation officers enforce the conditions of the sentence, which may involve supervision services such as substance abuse treatment or job counselling.
After sentencing, the case enters the post-conviction phase, where the defendant can appeal the outcome to a higher court. These appellate courts do not retry the case but examine the record for errors requiring a new trial, resentencing, or dismissal of charges. The prosecution may appeal the sentence under specific circumstances.
Criminal law also recognises accessories or accomplices who aid an individual knowing they are a criminal. These accomplices can be prosecuted independently of the principal perpetrator and may be found guilty of a more severe offence. Additionally, certain defences are available to defendants, such as failure of proof or claiming mistakes.
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Administrative law, including federal law
Administrative law is one of the four main types of law in the United States, alongside constitutional, statutory, and case (common) law. Administrative law is a body of law that governs the actions of administrative agencies of the US government. Federal administrative agencies, when granted the power to do so in a statutory grant of authority from Congress, may issue rules that have the force of law. These agencies legislate through rulemaking, which is the power to issue regulations.
The Administrative Procedure Act (APA) is the major source of federal administrative agency law, providing the framework for the roles and powers of all agencies, and the procedures they must follow. The APA categorizes administrative functions into formal and informal rulemaking and adjudication, which have binding effects, as well as guidance, which has no binding effect. The APA requires a process that includes publication of proposed rules, a period for comments and participation, and the adoption and publication of the final rule. This is known as "notice and comment" or "informal" rulemaking. The final rule must follow logically from the proposed rule and must display the agency's consideration of all comments received. Rules enacted by an administrative agency pursuant to statutory delegation, called substantive or legislative rules, must be judicially enforced as if they were laws enacted by Congress itself. Rules not enacted pursuant to an explicit statutory delegation of law-making power, called interpretive rules, are issued to provide guidance without the force of law.
Administrative agencies also have quasi-judicial and enforcement functions, conducting hearings and issuing decisions through administrative law judges. These judges are part of their respective agencies but must remain independent from agency officials. They adjudicate claims or disputes involving the agency, as impartial triers of fact and law, and are prohibited from engaging in any ex parte contact with the agency unless certain conditions are met. Interpretative rules are binding on agency employees, including administrative law judges. However, individual employees have no discretion to back out of the agency's interpretation or create ad hoc exceptions adverse to a party.
The level of deference afforded to administrative agencies by courts has varied over time. In 2024, the Supreme Court overturned Chevron U.S.A., Inc. v. NRDC, a case that established an extremely deferential standard of review where courts deferred to agency interpretations of statutes unless they were unreasonable. Going forward, courts must "independently interpret the statute and effectuate the will of Congress subject to constitutional limits."
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Common law, including case law
Common law, also known as case law, is a vital part of the legal system in the United States. It is a body of unwritten laws built upon legal precedents set by courts, which serve as a guide in cases where answers are not readily found in existing statutes or written regulations. Common law is shaped by these precedents and judicial rulings, rather than formal statutes, allowing for flexibility in judicial decision-making. This means that judges can base their rulings on previous cases when written laws do not provide clear guidance.
The common law system in the US traces its history to English common law, and it is distinct from the civil law system used in Continental Europe, Mexico, most of Central and South America, and some African countries. In the US, each state, except Louisiana, has a common law legal system. Louisiana's system is based on French civil code.
Common law promotes stability and consistency in the legal system as it ensures that outcomes are based on previous caselaw rather than subjective viewpoints. It also allows for efficiency in court proceedings as judges only need to follow precedent when making decisions. Additionally, common law provides adaptability to unforeseen situations as it can address issues that were not predicted or legislated by lawmakers.
In common law systems, the focus is often on examining earlier court rulings and decisions to determine what may be binding in the present. This involves searching for relevant caselaw or legal precedent, which can be time-consuming. The doctrine of precedent, or stare decisis, developed during the 12th and 13th centuries and forms the basis for evaluating future cases based on past judicial decisions.
In the US, common law at the federal level originates with the Constitution, which grants Congress the power to enact statutes. Federal law is compiled in the United States Code, which contains general and permanent federal statutes. State law, on the other hand, is usually developed through case law from state appellate courts and is rarely a matter of federal law.
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Corporate law, including tax law
Corporate law in the United States establishes the rules and regulations that corporations need to follow to form and function. Corporate lawyers handle various aspects of a corporation's legal administration, including mergers, acquisitions, liability disputes, patents, and legal compliance.
Corporate tax law, also known as revenue law, is a critical aspect of corporate law. It assists civilians and governmental systems in lawfully participating in the US taxation system. While yearly tax compliance is a standard part of American life, the system can be complex for some.
Corporate tax laws in the US have undergone significant changes in recent years. The 2017 tax reform legislation, for instance, shifted the focus from 'worldwide' to 'territorial' taxation. This change means that income derived within US borders is taxed, regardless of the taxpayer's residence. The legislation also reduced the corporate tax rate from 35% to a flat 21% for tax years starting after December 31, 2017.
Additionally, certain types of corporations, such as S corporations and mutual funds, are not taxed at the corporate level. Instead, their shareholders are taxed on the corporation's income. On the other hand, C corporations, which are those that are not S corporations, are taxed at the corporate level.
The treatment of crypto assets for tax purposes is another evolving aspect of corporate tax law in the US. While the US courts treat crypto assets as commodities, tax law considers them property. This discrepancy creates complexities in the state and local taxation landscape.
Corporate tax lawyers work in various settings, including large law firms, boutique tax firms, accounting firms, federal and state government agencies, nonprofit organizations, and corporations. They advise clients on tax planning, corporate reorganizations, and represent them in adversarial proceedings.
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Frequently asked questions
The US legal system is divided into criminal, civil, and administrative law. There are also four main types of legal systems: common law, civil law, religious law, and customary law.
Common law is created by the judiciary and comes from case law rather than statute. It focuses on judicial precedent, stare decisis, and the rule of law.
One example is real estate law, which covers the right to possess, use, and enjoy land and permanent man-made additions to it.
Civil law concerns compensating individuals who have been injured physically or economically.
Civil rights issues, such as employment and housing discrimination, are handled by civil rights lawyers.
