State law (United States)
In the United States, state law refers to the law of each separate U. S. state. The fifty American states are separate sovereigns, with their own state constitutions, state governments, state courts. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, a judicial branch that applies and overturns both state statutes and regulations, as well as local ordinances. States retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. State supreme courts are the final interpreters of state institutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U. S. Supreme Court by way of a petition for writ of certiorari. State laws have diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, so on.
Most cases involve claims and defenses under state laws. In a 2012 report, the National Center for State Courts' Court Statistics Project found that state trial courts received 103.5 million newly filed cases in 2010, which consisted of 57.8 million traffic cases, 20.4 million criminal cases, 19.0 million civil cases, 5.9 million domestic relations cases, 1.9 million juvenile cases. In 2010, state appellate courts received 272,795 new cases. By way of comparison, all federal district courts in 2010 together received only about 282,000 new civil cases, 77,000 new criminal cases, 1.5 million bankruptcy cases, while federal appellate courts received 56,000 new cases. The law of most of the states is based on the common law of England; the passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law. Thus, as noted above, the U. S. must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, so on. A typical example of the diversity of contemporary state law is the legal test for finding a duty of care, the first element required to proceed with a lawsuit for negligence.
A 2011 article found that 43 states use a multifactor balancing test consisting of four to eight factors, but there are 23 various incarnations because so few states use the same test, consolidating those into a single list results in 42 unique factors. The laws of different states come into conflict with each other, which has given rise to a huge body of law regulating the conflict of laws in the United States; the diversity of U. S. state law first became a notable problem during the late 19th century era known as the Gilded Age, when interstate commerce was nurtured by new technologies like the telegraph, the telephone, the railroad. Many lawyers during the Gilded Age complained about how the diversity and volume of state law hampered interstate trade and introduced complexity and inconvenience into any interstate transaction. There have been three major reactions to this problem, none of which were successful: codification, uniform acts, the Restatements; the United States, with the exception of Louisiana inherited a common law system in which the law was not organized and restated such that it could be identified as relevant to a particular legal question and in force.
The process of organizing the law, called codification, was borrowed from the civil law through the efforts of American lawyer David Dudley Field. Field, in turn, was building upon early foundational work by the English legal philosopher Jeremy Bentham, who coined the verb "to codify" for the process of drafting a legal code; the earliest attempt at codification occurred in Massachusetts with a 1648 publication. Today, all states but Pennsylvania have completed the process of codifying all of their general statutory law into legal codes. There is much diversity in the structure of the state codes, reflecting the diversity of the statutory law on which they were built. New York's codes are known as "Laws." California and Texas call them "Codes." Other states use terms such as "Code of ", "Revised Statutes", or "Compiled Statutes" for their compilations. California, New York, Texas use separate subject-specific codes. Louisiana is a unique hybrid in that it has five subject-specific codes and a set of Revised Statutes for everything else.
A poorly drafted 1864 anti-corruption amendment to Pennsylvania's constitution prevented its legislature from starting comprehensive codification until 1970. The advantage of codification is that once the state legislature becomes accustomed to writing new laws as amendments to an
International law is the set of rules regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is applicable to countries rather than to individual citizens. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts. National laws or constitutions may provide for the implementation or integration of international legal obligations. International law is consent-based governance, as there is no means of enforcement in a world dominated by sovereign states; this means that a state may choose to not abide by international law, to break its treaty. However, violations of customary international law and peremptory norms can lead to military action or other forms of coercion, such as diplomatic pressure or economic sanctions.
The current order of international law, the equality of sovereignty between nations, was formed through the conclusion of the "Peace of Westphalia" in 1648. Prior to 1648, on the basis of the purpose of war or the legitimacy of war, it sought to distinguish whether the war was a "just war" or not; this theory of power interruptions can be found in the writings of the Roman Cicero and the writings of St. Augustine. According to the theory of armistice, the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time The 17th, 18th and 19th centuries saw the growth of the concept of the sovereign "nation-state", which consisted of a nation controlled by a centralised system of government; the concept of nationalism became important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, not binding except as matters of honor and faithfulness.
But treaties alone became toothless and wars became destructive, most markedly towards civilians, who decried their horrors, leading to calls for regulation of the acts of states in times of war. The modern study of international law starts in the early 19th century, but its origins go back at least to the 16th century, Alberico Gentili, Francisco de Vitoria and Hugo Grotius, the "fathers of international law." Several legal systems developed in Europe, including the codified systems of continental European states and English common law, based on decisions by judges and not by written codes. Other areas developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings. One of the first instruments of modern international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilised nations, the precursor of international law.
This led to the first prosecution for war crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War. In the years that followed, other states subscribed to limitations of their conduct, numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, but not limited to, the Permanent Court of Arbitration in 1899; because international law is a new area of law its development and propriety in applicable areas are subject to dispute. Under article 38 of the Statute of the International Court of Justice, international law has three principal sources: international treaties and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law", International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties.
Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission, under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms as to include all states with no permissible derogations.
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Uniform Law Commission
The Uniform Law Commission is a non-profit, American unincorporated association. Established in 1892, the ULC aims to provide U. S. states with well-researched and drafted legislation to bring clarity and stability to critical areas of statutory law across jurisdictions. The ULC promotes enactment of uniform acts in areas of state law where uniformity is desirable and practical; the ULC headquarters are in Illinois. The ULC consists of 350 commissioners appointed by each state, the District of Columbia, the Commonwealth of Puerto Rico and the United States Virgin Islands. All of its members are lawyers, who may serve as legislators, judges, or legal scholars; each is appointed to the Commission by the government of their respective territory. Every ULC commissioner must be an attorney; each jurisdiction determines its number of commissioners. In most states, the governor appoints the state's commissioners to serve a specified term. In a few states, ULC commissioners serve at the will of the appointing authority and have no specific term.
ULC commissioners are volunteers who do not receive salaries or other compensation for their public service. The ULC is best known for its work on the landmark Uniform Commercial Code, drafted in conjunction with the American Law Institute. Since the ULC first convened in 1892, it has produced more than 300 uniform acts; these acts focus on commercial law and domestic relations law, estates and trusts, real estate, alternate dispute resolution, many other areas of the law. Among the ULC's most adopted acts are the Uniform Commercial Code, the Uniform Anatomical Gift Act, the Uniform Trade Secrets Act, the Uniform Child Custody Jurisdiction and Enforcement Act, the Uniform Interstate Family Support Act, the Uniform Electronic Transactions Act, the Uniform Transfers to Minors Act, the Revised Uniform Fiduciary Access to Digital Assets Act; the current ULC President is Anita Ramasastry of Seattle, the Chair of the ULC's Executive Committee is Carl H. Lisman of Burlington and the Chair of the Scope and Program Committee is Daniel Robbins of Sherman Oaks, California.
Richard Cassidy of Burlington, Vermont is the Immediate Past President. The uniform law movement began in the latter half of the 19th century; the Alabama State Bar Association recognized as early as 1881 that wide variations in law between separate states created confusion. In 1889, the New York Bar Association appointed a special committee on uniformity of laws. In 1890 the New York Legislature authorized the then-Governor of New York, Roswell Flower, to appoint three commissioners "to examine certain subjects of national importance that seemed to show conflict among the laws of the several commonwealths, to ascertain the best means to effect an assimilation or uniformity in the laws of the states and territories, whether it would be advisable for the State of New York to invite the other states of the Union to send representatives to a convention to draft uniform laws to be submitted for approval and adoption by the several states." The American Bar Association held its 12th Annual Meeting the same year and adopted a resolution recommending each state provide for commissioners to confer with the commissioners of other states on the uniformity of legislation on certain subjects.
In August 1892, the first session of the organization that became the Uniform Law Commission was held at the Grand Union Hotel in Saratoga Springs, New York. The gathering took place before the annual summer meeting of the American Bar Association, a tradition that continues; the gathering brought together delegates from seven states: Delaware, Massachusetts, New Jersey, New York, Pennsylvania. They titled themselves the "Conference of the State Boards of Commissioners on Promoting Uniformity of Law in the U. S." By 1912, every state was participating in the Commission. The United States Virgin Islands was the last jurisdiction to join, appointing its first commissioner in 1988. In each year of service, the ULC has increased its contribution to state and territorial law, it became known as a distinguished body of lawyers. In 1901, Woodrow Wilson became a member. Several commissioners became Justices of the Supreme Court of the United States: Louis Brandeis, Wiley Blount Rutledge, William H. Rehnquist.
Several noted legal scholars have been members, e.g. John Wigmore, Samuel Williston, Roscoe Pound, John Bogart; the distinguished membership of the ULC has helped to ensure the quality of its work and made it enormously influential. In 1940, the ULC moved to dispel confusion in U. S. commercial law with a comprehensive solution. This project led the ULC to partner with the American Law Institute to create the Uniform Commercial Code; the Code took ten years to complete. After another 14 years, it had been enacted in every state, it remains the signature product of the Commission. Since its organization, the ULC has drafted more than 300 uniform laws on numerous subjects and in various fields of law, setting patterns for uniformity across the nation. Today, the Commission is recognized for its work in commercial law, family law, real property law, the law of probate and estates, the law of business organizations, health law, conflicts of law. Uniform acts include the Uniform Collaborative Law Act, Uniform Probate Code, the Uniform Child Custody Jurisdiction Act, the Uniform Partnership Act, the Uniform Anatomical Gift Act, the Uniform Limited Partnership Act, the Uniform Interstate Family Support Act.
The ULC has
Constitutional law is a body of law which defines the role and structure of different entities within a state, the executive, the parliament or legislature, the judiciary. Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules; these may include customary law, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause. In most nations, such as the United States and Singapore, constitutional law is based on the text of a document ratified at the time the nation came into being.
Other constitutions, notably that of the United Kingdom, rely on unwritten rules known as constitutional conventions. Constitutional laws may be considered second order rule making or rules about making rules to exercise power, it governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, judiciary, though there is a delegation of power or authority to local or municipal authorities; when a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking and enforcement. Some federal states, most notably the United States, have separate and parallel federal and state judiciaries, with each having its own hierarchy of courts with a supreme court for each state.
India, on the other hand, has one judiciary divided into district courts, high courts, the Supreme Court of India. Human rights or civil liberties form a crucial part of a country's constitution and uphold the rights of the individual against the state. Most jurisdictions, like the United States and France, have a codified constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the European Union, intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified; the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments; some countries like the United Kingdom have no entrenched document setting out fundamental rights. A case named Carrington is a constitutional principle deriving from the common law.
John Entick's house was ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority though there was no statutory provision or court order for it; the court, led by Lord Camden stated that, "The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, the plaintiff must have judgment." The common law and the civil law jurisdictions do not share the same constitutional law underpinnings. Common law nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, as such place emphasis on judicial precedent, whereby consequential court rulings are a source of law.
Civil law jurisdictions, on the other hand, place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs between the two, with common law judiciaries being adversarial and civil law judiciaries being inquisitorial. Common law judicatures separate the judiciary from the prosecution, thereby establishing the courts as independent from both the legislature and law enforcement. Human rights law in these countries is as a result built on legal precedent in the courts' interpretation of constitutional law, whereas that of civil law countries is exclusively composed of codified law, constitutional or otherwise. Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force.
Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law; as a body of law, administrative law deals with the decision-making of the administrative units of government that are part of a national regulatory scheme in such areas as police law, international trade, the environment, broadcasting and transport. Administrative law expanded during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the social and political spheres of human interaction. Civil law countries have specialized courts, administrative courts, that review these decisions. Unlike most common-law jurisdictions, the majority of civil law jurisdictions have specialized courts or sections to deal with administrative cases which, as a rule, will apply procedural rules designed for such cases and different from that applied in private-law proceedings, such as contract or tort claims.
In Brazil, unlike most Civil-law jurisdictions, there is no specialized court or section to deal with administrative cases. In 1998, a constitutional reform, led by the government of President Fernando Henrique Cardoso, introduced regulatory agencies as a part of the executive branch. Since 1988, Brazilian administrative law has been influenced by the judicial interpretations of the constitutional principles of public administration: legality, publicity of administrative acts and efficiency; the President of the Republic exercises the administrative function, in collaboration with several Ministries or other authorities with ministerial rank. Each Ministry has one or more under-secretary that performs through public services the actual satisfaction of public needs. There is not a single specialized court to deal with actions against the Administrative entities, but instead there are several specialized courts and procedures of review. In France, most claims against the national or local governments as well as claims against private bodies providing public services are handled by administrative courts, which use the Conseil d'État as a court of last resort for both ordinary and special courts.
The main administrative courts are the tribunaux administratifs and appeal courts are the cours administratives d'appel. Special administrative courts include the National Court of Asylum Right as well as military and judicial disciplinary bodies; the French body of administrative law is called "droit administratif". Over the course of their history, France's administrative courts have developed an extensive and coherent case law and legal doctrine before similar concepts were enshrined in constitutional and legal texts; these principes include: Right to fair trial, including for internal disciplinary bodies Right to challenge any administrative decision before an administrative court Equal treatment of public service users Equal access to government employment without regard for political opinions Freedom of association Right to Entrepreneurship Right to Legal certainty French administrative law, the founder of Continental administrative law, has a strong influence on administrative laws in several other countries such as Belgium, Greece and Tunisia.
Administrative law in Germany, called "Verwaltungsrecht" de:Verwaltungsrecht rules the relationship between authorities and the citizens and therefore, it establishes citizens' rights and obligations against the authorities. It is a part of the public law, which deals with the organization, the tasks and the acting of the public administration, it contains rules, regulations and decisions created by and related to administrative agencies, such as federal agencies, federal state authorities, urban administrations, but admission offices and fiscal authorities etc. Administrative law in Germany follows three basic principles. Principle of the legality of the authority, which means that there is no acting against the law and no acting without a law. Principle of legal security, which includes a principle of legal certainty and the principle of nonretroactivity Principle of proportionality, which says that an act of an authority has to be suitable and appropriateAdministrative law in Germany can be divided into general administrative law and special administrative law.
The general administration law is ruled in the administrative procedures law. Other legal sources are the Rules of the Administrative Courts, the social security code and the general fiscal law; the Verwaltungsverfahrensgesetz, enacted in 1977, regulates the main administrative procedures of the federal government. It serves the purpose to ensure a treatment in accordance with the rule of law by the public authority. Furthermore, it contains the regulations for mass processes and expands the legal protection against the authorities; the VwVfG applies for the entire public administrative activities of federal agencies as well as federal state authorities, in case of m
In jurisdictions following the English common law system, equity is the body of law, developed in the English Court of Chancery and, now administered concurrently with the common law. For much of its history, the English common law was principally developed and administered in the central royal courts: the Court of King's Bench, the Court of Common Pleas, the Exchequer. Equity was the name given to the law, administered in the Court of Chancery; the Judicature Reforms in the 1870s effected a procedural fusion of the two bodies of law, ending their institutional separation. The reforms did not effect any substantive fusion, however. Judicial or academic reasoning which assumes the contrary has been described as a "fusion fallacy". Jurisdictions which have inherited the common law system differ in their current treatment of equity. Over the course of the twentieth century some common law systems began to place less emphasis on the historical or institutional origin of substantive legal rules. In England, New Zealand, Canada, equity remains a distinct body of law.
Modern equity includes, among other things: The law relating to express and constructive trusts. The latter part of the twentieth century saw increased debate over the utility of treating equity as a separate body of law; these debates were labelled the "fusion wars". A particular flashpoint in this debate centred on the concept of unjust enrichment and whether areas of law traditionally regarded as equitable could be rationalised as part of a single body of law known as the law of unjust enrichment. After the Norman Conquest of England in the 11th century, royal justice came to be administered in three central courts: the Court of King's Bench, the Court of Common Pleas, the Exchequer; the common law developed in these royal courts. To commence litigation in these royal courts, it was necessary to fit one's claim within a form of action; the plaintiff would purchase a writ in the Chancery, the head of, the Lord Chancellor. If the law provided no remedy, litigants could sometimes appeal directly to the King.
The King would delegate resolution of these petitions to the King's Council. These petitions were delegated to the Lord Chancellor himself. In the early history of the United States, common law was viewed as a birthright. Both the individual states and the federal government supported common law after the American Revolution. U. S. courts draw on decisions of English courts, individual state courts, federal courts in formulating common law. By the 14th century it appears that Chancery was operating as a court, affording remedies for which the strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors had theological and clerical training and were well versed in Roman law and canon law. By the 15th century the judicial power of Chancery was recognised. Equity, as a body of rules, varied from Chancellor until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of Chancellor. Over time, Equity developed a system of precedent much like its common-law cousin.
One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role that the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between equitable interests, it was early provided that, in seeking to remove one who wrongfully entered another's land with force and arms, a person could allege disseisin and demand a writ of entry. That writ gave him the written right to re-enter his own land and established this right under the protection of the Crown if need be, whence its value. In 1253, to prevent judges from inventing new writs, Parliament provided that the power to issue writs would thereafter be transferred to judges only one writ at a time, in a "writ for right" package known as a form of action. However, because it was limited to enumerated writs for enumerated rights and wrongs, the writ system sometimes produced unjust results, thus though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them.
Therefore, lacking a legal remedy, the plaintiff's only option would be petitioning the King. People began petitioning the King for relief against unfair judgments, as the number of petitioners grew, so the King delegated the task of hearing petitions to the Lord Chancellor; as the early Chancellors lacked formal legal training and showed little regard for precedent, their decisions were widely diverse. In 1529, a lawyer, Sir Thomas More, was appointed as Chancellor. After this time, all future Chancellors were lawyers. Beginning around 1557, records of proceedings in the Courts of Chancery were kept and several equitable doctrines developed. Criticisms continued, the most famous being 17th-century jurist John Selden's aphorism:Equity is a roguish thing: for law we have a measure, know what to trust to. One Chancellor has a long foot, another a short foot, a third an indifferent foot:'tis the same thing in a Chancellor's conscience. A criticis