Cecily Zamora
The law of the United States is largely derived from English common law, which was in force at the time of the American Revolutionary War. However, US law has diverged significantly from its English counterpart in both substance and procedure, with the adoption of a number of civil law innovations. The most notable differences are in public law, with the US Constitution granting every court the power to judge the conformity of legislation and official actions to constitutional norms, a power England does not have due to its lack of a written constitution.
| Characteristics | Values |
|---|---|
| US Constitution | Written constitution that prescribes the foundation of the federal government and civil liberties |
| Judicial Review | All US courts can review legislation and official actions for constitutionality |
| Federal System | Complex federal system with a separate body of federal law |
| Public Law | Differences in public law due to US judicial power and federal system |
| Tort Law | US has unique torts like interference with privacy |
| Libel | US practice is less strict than England, allowing public figures to be criticised |
| Division of Assets | Some US states adhere to equal division of assets, rather than discretionary division |
| Homestead Laws | Some US states have homestead laws to protect the family home from creditors |
| Exclusionary Rule | Spawned a family of judge-made remedies for abuse of law enforcement powers |
| Law of Civil Procedure | Replaced traditional common law pleading with modern notice pleading |
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What You'll Learn
US public law
The most notable differences between US and English public law are in the areas of constitutional law and judicial review. The US has a written constitution, which is the supreme law of the nation and forms the foundation of the federal government. Every US court has the power to rule on the constitutionality of legislation and official actions, which has led to the "constitutionalization" of many areas of US law. In contrast, England has no written constitution and restricts judicial review.
Another key difference is the approach to common law and equity courts. The US has a complex federal system, with federal and state courts applying different rules. The old English division between common law and equity courts was abolished in the US federal courts with the adoption of the Federal Rules of Civil Procedure in 1938. This has also been independently abolished by legislative acts in nearly all states.
In terms of tort law, while it is largely common law in both England and the US, there are some differences in its application. For example, US tort law includes interference with privacy, such as the use of a person's photograph for advertising without permission or taking photographs of people in embarrassing situations. In the field of libel, US practice is less strict than English law, as public figures cannot sue for honest but unfair and untrue criticisms of their activities.
Finally, there are differences in the division of assets during marriage and succession. While most common-law countries follow the English model of allowing judges to use their discretion in reallocating property and income, some American states adhere to the principle of equal division of assets.
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US state law
US law, at both the federal and state levels, is largely derived from English common law, which was in force in British America during the American Revolutionary War. However, US state law has diverged significantly from English law in terms of substance and procedure, and has since incorporated several civil law innovations. The US Constitution is the supreme law of the nation, and it prescribes the foundation of the federal government and various civil liberties. It also sets out the boundaries of federal law, which includes Acts of Congress, treaties ratified by the Senate, regulations from the executive branch, and case law from the federal judiciary.
One notable difference between US state law and English common law is in the area of public law. Unlike England, which has no written constitution and restricts judicial review, the US Constitution empowers every court in the country to pass judgment on the conformity of legislation and official actions to constitutional norms. This has led to the "constitutionalization" of many areas of US law through the increasing exercise of judicial power. Additionally, the complex federal system and presidential form of government in the US further distinguish its public law from that of England.
Another divergence between US state law and English common law can be seen in the treatment of property division during marriage dissolution. While most common-law countries follow the English model of allowing judges to use their discretion in reallocating property and income, some American states adhere to the principle of equal division of assets. This means that, in these states, judges are not given the same level of discretion as their English counterparts when it comes to dividing property and income between spouses.
Tort law, which covers a wide range of wrongs that humans can inflict upon each other, is primarily a matter of state law in the US. While it partially overlaps with criminal law, it is usually developed through case law from state appellate courts. State tort-related statutes focus on specific issues, such as authorizing wrongful death claims, which did not exist at common law. The American Law Institute has attempted to standardize tort law, but many states have selectively adopted only certain sections of the Restatements. In the field of libel, US practice is less strict than English law. Public figures in the US cannot sue for honest but unfair and untrue criticisms, while in England, published facts must be true and comments fair.
State laws in the US have evolved independently over the centuries since independence, resulting in significant differences across the 50 states. Each state has a legislative branch that enacts state statutes, an executive branch that promulgates state regulations, and a judicial branch that interprets and applies these laws. State supreme courts are typically the final interpreters of state constitutions and state law, unless a federal issue arises, in which case a decision can be appealed to the US Supreme Court.
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US tort law
US law has diverged significantly from its English predecessor, both in substance and procedure, and has incorporated several civil law innovations. The most notable differences are in the area of public law. For instance, England has no written constitution and restricts judicial review, while every US court can rule on the constitutionality of legislation and official actions.
Tort law aims to provide relief to injured parties for harms caused by others, impose liability on parties responsible for the harm, and deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party at fault or better suited to bear the burden of the loss. The boundaries of tort law are defined by common law and state statutory law.
There are numerous specific torts, including trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress. Intentional torts are wrongs that the defendant knew or should have known would result from their actions or omissions. Negligence is the most common source of common law torts, and it occurs when the defendant's actions were unreasonably unsafe. Some jurisdictions recognize designations such as "wanton", "reckless", or "despicable" conduct. Strict liability torts, such as liability for making and selling defective products, do not depend on the degree of care used by the defendant. Instead, courts focus on whether a particular result or harm manifested.
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US libel law
US law is largely derived from English common law, which was in force in British America at the time of the American Revolutionary War. However, American law has diverged significantly from its English counterpart in both substance and procedure. One notable area of divergence is US libel law, which is less strict than English libel law. Libel is a form of defamation expressed through writing, pictures, signs, or any other physical form that is injurious to a person's reputation, exposes them to public hatred or contempt, or harms them in their business or profession.
In the United States, public figures cannot sue for honest but unfair and untrue criticisms of their activities, whereas in England, published facts must be true and comments must be fair. This difference stems from the First Amendment's guarantees of freedom of speech and freedom of the press, which offer defendants in the US a level of protection from defamation lawsuits. As a result, the US Supreme Court has held that the First Amendment limits a state's ability to award damages in libel cases.
The landmark case of New York Times Co. v. Sullivan (1964) established that public officials could only win a libel suit if they could prove that the defendant knew the information was completely false or that it was published with reckless disregard for its truth. This decision constitutionalized libel law in the US and set a precedent for subsequent cases.
While criminal libel laws exist in some US states, they are rarely prosecuted. Most defendants in defamation lawsuits are newspapers or publishers, while most plaintiffs are public figures, including corporations, businesspeople, and entertainers. The definition of libel varies across different states, and some states have combined libel and slander laws.
In summary, US libel law diverges from English common law by prioritizing freedom of speech and freedom of the press, resulting in a higher burden of proof for public figures suing for libel and a more challenging environment for defamation lawsuits.
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US marriage law
The concept of "common-law marriage" is often used colloquially to refer to cohabiting couples, regardless of their legal rights. This can create confusion regarding the term and the legal rights of unmarried partners. Common-law marriage, or de facto marriage, is a legal concept that recognises a marriage between partners who have not obtained a marriage license or participated in a formal ceremony. Instead, the union is deemed valid based on the couple's mutual agreement, cohabitation, and the perception of the community.
In the United States, common-law marriages are recognised in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. The specific requirements for a common-law marriage to be recognised vary by state or jurisdiction and must be considered by couples. For example, in Texas, couples can file a legal "Declaration of Informal Marriage", which is a legally binding document that must be completed by both partners and sworn in the presence of the County Clerk.
The origins of common-law marriage are uncertain, but it is argued to be the original form of marriage, where a couple took up residency together, held themselves out as a married couple, and behaved as such. It has been gradually abolished in Western nation states over the centuries. The roots of common-law marriage in the US can be traced back to colonial times, where legal systems mirrored those of England. In medieval England, formalities were less emphasised, and unions were recognised based on the couple's intent and public acknowledgment. As settlers moved into sparsely populated regions of the West, the presence of few clerics or civil officials necessitated a substitute for ceremonial marriage.
Today, the legal landscape surrounding marriage and divorce continues to evolve, and understanding the history and implications of common-law marriage is crucial, especially in divorce proceedings.
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Frequently asked questions
The law of the United States is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).
The United States, like many other common-law countries, traces its legal history back to English common law. A reception statute is a statutory law that new nations often adopt post-independence, which the US did.
US law has diverged from English common law in many areas, with legal approaches differing significantly. The most notable differences are in public law. The US has a written constitution and judicial review, which England lacks. The US has also constitutionalized many areas of law, giving every court the power to judge legislation and official actions against constitutional norms.
One example is in the area of marriage and property division. While most common-law countries follow the English model of discretionary division of assets, some American states adhere to the principle of equal division. Another example is in libel law, where the US practice is less strict than England's, with public figures unable to sue for honest but untrue criticisms.
State laws in the US have diverged significantly since independence, with each state having its legislative, executive, and judicial branches. State supreme courts are the final interpreters of state constitutions and laws, unless a federal issue is involved. This has resulted in the US being regarded as 50 separate legal systems rather than one unified system.
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