American law | Britannica (original) (raw)

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Assorted References

• major reference
  • 
    In common law: The development of common law in the United States and other jurisdictions
    The first English settlers on the Atlantic Seaboard of North America brought with them only elementary notions of law. Colonial charters conferred upon them the traditional legal privileges of English citizens, such as habeas corpus and the right to trial…
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• application of summary jurisdiction
  • In summary jurisdiction
    In the United States, despite federal and state constitutional provisions guaranteeing trial by jury, it is generally held that certain petty offenses (e.g., disturbing the peace) may be tried summarily. The trial of such cases is usually more informal and expeditious than those for more serious offenses.…
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• awarding of punitive damages
  • In tort: Punishment and appeasement
    …cannot be said of the United States, where punitive awards, often amounting to millions of dollars, had a significant effect on the tort strategies of litigants.
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• development of probate
  • In probate
    In America, secular courts were set up to deal with probate matters, and in the 19th century their jurisdiction was extended to cover the problem of the validity of a will with respect to real property. The same step was taken in England in 1897, after…
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• jurisdiction of magistrates’ court
  • In magistrates’ court
    …certain large municipalities in the United States.
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• juvenile justice
  • In juvenile justice: United States
    The establishment of the first Children’s Court of Law in Chicago in 1889 represented a major innovation in juvenile justice. Throughout the 19th century, juveniles in the United States who were accused of criminal behaviour were tried in the same courts as adults…
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• medical licensing
  • 
    In health law: The exclusive systems
    …is best exemplified by the United States, where it is a criminal offense for anyone to practice medicine without a license. The practice of medicine is usually defined to include diagnosis, treatment, prescription, and surgery. Physicians may lawfully practice in any branch of medicine and any of its subspecialties, although…
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• medicinal marijuana
  • 
    In drug use: History of cannabis use and regulation
    In the United States several states passed legislation in the late 1970s and early ’80s to fund research on or to legalize the medicinal use of marijuana, though some of these statutes were later repealed or lapsed. Renewed decriminalization efforts in the 1990s led to the legalization…
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• model for Japanese law
  • In Japanese law
    …closer to that of the United States than to European models, largely as a result of the post-World War II occupation and of later contacts with U.S. legal thinking and education. The examination of witnesses in civil cases is now (at least theoretically) modeled on U.S. procedure. The absence of…
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• penalties for homicide
  • 
    In homicide
    Many U.S. states distinguish between murder of the first and of the second degree, with capital punishment limited to crimes of clear intent.
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• procedural law
  • 
    In procedural law: English common law
    …were both adopted in the United States.
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  • In evidence: Oral proceedings
    …less problematic under the Anglo-American system than under the civil-law system to the extent that evidence is heard before the jury. But this system has spawned a large number of regulations for the admissibility of evidence in order to guarantee due process and fair procedure and to protect the…
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• regulation of propaganda
  • 
    In propaganda: Democratic control of propaganda
    In the U.S., for instance, publishers of journals using the second-class mails are required to issue periodic statements of ownership, circulation, and other information; thereby, at least the nominal owners and publishers become known—but those who subsidize or otherwise control them may not. In many places, paid…
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• right to assigned counsel
  • In assigned counsel
    …than the United States, the United States was at the forefront in providing assigned counsel. Beginning in 1963 in Gideon v. Wainwright, the United States Supreme Court issued a series of decisions that upheld the rights of indigent persons accused of felonies to have counsel during trial and appeal and…
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• role in business organization
  • 
    In business organization: Partnerships
    …limited partnership, and in the United States at the beginning of the 19th century only Louisiana, which was governed by French civil law, permitted such partnerships. During the 19th century most of the states enacted legislation allowing limited partnerships to be formed, and in 1907 Great Britain adopted the limited…
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• statute of limitations
  • In statute of limitations
    In the United States the periods normally are shorter than in continental Europe. As with civil actions, the period prescribed in a criminal statute of limitations does not run in the case of a defendant who has fled or concealed himself in order to avoid prosecution. In…
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• study in comparative law
  • 
    In comparative law: International efforts
    …countries (chiefly England and the United States), then still further afield to the socialist systems, and finally, after 1945, to the laws of the newly independent states of Asia and Africa. The new territory for legal study that was thus opened up resulted in references to comparative law, rather than…
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• test of criminal insanity
  • In insanity
    ” Some U.S. courts went further and also relieved from responsibility one moved by an “irresistible impulse.”
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• validity of common-law marriage
  • In common-law marriage
    In the United States by the second half of the 20th century, common-law marriages were valid in about one-third of the states, absolutely or conditionally (if entered into before a certain statute-defined date).
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branches

property law

• 
  In property law: Marxism, liberalism, and the law
  In the United States the influence of liberal ideas on the development of the law of property can be seen most strongly in the substantial jurisprudence that emerged concerning the protection of property against the state. On the federal level, this development came after the passage of…
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• 
  In property law: Concurrent individual owners
  In many American jurisdictions, however, legislation allows the partners to hold partnership property in a form of cotenancy, known as tenancy in partnership, which is quite similar to the German Gesamthandeigentum. Roman law treated ownership by partners in a way similar to the English common law, but…
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• 
  In property law: Private land-use servitudes
  (In American property law such servitudes are called easements.) A landowner may acquire a servitude by mutual agreement or by court order following a demonstration of necessity. Such servitudes are property interests that run with the land, as opposed to mere contractual rights. As such, their…
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• trademark laws

• treasure trove

  • In treasure trove
    In the United States the common law, following the English, would seem to give treasure trove to the public treasury, but in practice the finder has been allowed to keep it. In Louisiana half goes to the finder and half to the owner of the land. Modern…
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• business law

  • 
    In agency: Modern developments
    …institution in English and North American law, “knitting together the whole subject of the employment of one man by another, whether for one job or for life, and whether on commission or on payroll.”
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  • 
    In agency: Liability of principal for acts of agents
    According to English and American law, the liability of a principal for his agent’s torts in the ordinary course of his employment depends upon the existence of a master–servant relationship. If the principal and agent stand in a master–servant relationship to each other, the master is vicariously liable for…
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  • 
    In commercial transaction: Negotiable instruments
    In the United States the definition is the same, except that an instrument may only be made payable “to order or to bearer.” If the drawee assents to the order and accepts the bill, which is done by signing his name, or his name with the word…
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• constitutional law

  • In constitutional law: The nature of constitutional law
    In the United States the doctrine of natural rights was even more successful. Once the American colonies became independent states (1776), they faced the problem of giving themselves a fresh political organization. They seized the opportunity to spell out in legal documents, which could be amended only…
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• contract law

  • 
    In contract: Fairness and social utility
    …are illegal, such as—in the United States—agreements in restraint of trade. Others, such as an agreement to commit a civil wrong, are held by the courts to be contrary to the public interest. Certain systems discourage some purposes, such as the assumption of a legally binding obligation to confer a…
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• criminal law

  • In criminal law: Principles of criminal law
    …Penal Code proposed by the American Law Institute in 1962 states that an objective of criminal law should be “to give fair warning of the nature of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Since that time there has been renewed…
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• family law

  • In family law: Maintenance and support
    In some countries—for example, the United States, Canada, and various European countries—attempts have been made to combine parental and public responsibility for the child’s welfare.
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• labour laws

  • 
    In labour law: Historical development of labour law
    The more-industrialized states of the United States began to enact such legislation toward the end of the 19th century, but the bulk of the present labour legislation of the United States was not adopted until after the Great Depression of the 1930s. There was virtually no labour legislation in Russia…
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  • 
    In labour law: Unifying tendencies
    …the advanced countries except the United States and the erstwhile Soviet Union, where external influences were secondary. In much of the developing world they were of great importance even before independence, since much of the legislation sponsored there by the colonial powers was based on ILO standards.
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• maritime law

  • 
    In maritime law: Historical development
    In the United States, the federal district courts are by statute granted original jurisdiction, “exclusive of the courts of the States,” of “Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” This means,…
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• transportation law

  • 
    In carriage of goods: Common-law common carrier
    In the United States distinction is made among common carriers, contract carriers, and private carriers. A person who engages to carry the goods of particular individuals rather than of the general public is a contract carrier; a person who carries his own goods is a private carrier.…
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characteristics of

jury

• In jury: History and use
  …introduce it outside the Anglo-American legal orbit largely failed. In England its use was limited by statute to a small category of cases. Consequently, the United States emerged as the home of the jury system for both criminal and civil cases; more than 90 percent of all jury trials…
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• death-qualified jury

  • In death-qualified jury
    …the Supreme Court of the United States in Witherspoon v. Illinois, in which the court ruled that philosophical opposition to capital punishment did not disqualify a juror automatically, as a person might oppose capital punishment generally yet believe it is his duty to uphold the laws as they are until…
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• petit jury

  • In petit jury
    …juries in England and the United States historically have contained 12 members, there is no uniform number. Numerical requirements for a valid verdict vary (e.g., unanimity in most courts in the United States, a majority in Scotland and Italy, two-thirds in Portugal), as do subject areas of operation. For example,…
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• equity

  • In equity
    -American law, the custom of courts outside the common law or coded law. Equity provided remedies in situations in which precedent or statutory law might not apply or be equitable.
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• federal and state courts

  • 
    In court: Courts in federal systems
    In the United States, for example, there are 51 separate judicial systems, one for each state and another for the federal government. To a limited extent, the jurisdiction of the federal courts is exclusive of that exercised by the state courts, but there are large areas of…
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• grand jury

  • In grand jury
    In the United States the right to a grand-jury indictment for serious crimes is safeguarded in federal courts by the Fifth Amendment to the Constitution. But the federal criminal code permits prosecutors to initiate all cases except those involving capital crimes if the accused waives indictment by…
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• injunction

  • In injunction
    In the United States the injunction retains its essentially equitable character and, as in England, covers a wide spectrum of types of injurious or potentially injurious conduct. The most significant developments in the United States have been in connection with labour disputes, governmental regulation, and the protection…
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• judicial selection

  • 
    In court: Professional judges in the common-law tradition
    In the United States, the appointive method is used in federal courts and some state courts, but ideological and partisan considerations—particularly at the federal level—play a very significant role in appointments to the bench. In the United States, all appointments to the federal bench, and many appointments…
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• jurisdiction

  • In competence and jurisdiction
    In the United States, jurisdiction is largely personal. If a defendant, either a person or a corporation (a legal person), can be served with a subpoena to appear, the court may become involved in the case. In common-law countries, if personal jurisdiction is impossible to achieve, then…
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• law reports

  • In law report
    …and federal reports in the United States were also privately published under the reporter’s name, although the appointment of an official reporter was an early development. Today reported opinions are almost invariably written by the court and are officially published. Late in the 19th century a private publishing concern began…
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• patent system

  • 
    In patent
    …the United States the Constitution authorizes Congress to create a national patent system to “promote the Progress of Science and useful Arts” by “securing for limited Times to…Inventors the exclusive Right to their respective…Discoveries” (Article I, Section 8). Congress passed the first Patent Statute in 1790. France enacted its patent…
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• Supreme Court of the United States

  • 
    In Supreme Court of the United States: Scope and jurisdiction
    …cases arising under the Constitution, laws, or treaties of the United States; in controversies to which the United States is a party; in disputes between states or between citizens of different states; and in cases of admiralty and maritime jurisdiction. In suits affecting ambassadors, other public ministers, and consuls and…
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• United States Claims Court

  • In United States Court of Federal Claims
    Constitution, federal laws, executive regulations, or express or implied contract with the government. The court assumed the original jurisdiction formerly exercised by the United States Court of Claims, concurrently abolished in 1982. The present name was adopted in 1992.
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• United States Court of Appeals

  • In United States Court of Appeals
    …intermediate appellate courts within the United States federal judicial system, including 12 courts whose jurisdictions are geographically apportioned and the United States Court of Appeals for the Federal Circuit, whose jurisdiction is subject-oriented and nationwide.
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• United States District Court

  • In United States District Court
    …94 judicial districts throughout the United States. Each state has at least one judicial district, as do the District of Columbia and Puerto Rico, and a populous state may have as many as four districts. The number of judges varies widely from district to district.
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concept of

privacy

• In tort: Protection of honour, reputation, and privacy
  American law meanwhile was classifying and refining the many headings of actionable privacy created by statute or wide-ranging judicial pronouncements: appropriation of likeness, unreasonable intrusion, false light cases (i.e., those in which the plaintiff claims to have been placed in a false light by the…
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• data mining

  • In data mining: Privacy concerns and future directions
    In the United States, many federal agencies are now required to produce annual reports that specifically address the privacy implications of their data-mining projects. The U.S. law requiring privacy reports from federal agencies defines data mining quite restrictively as “…analyses to discover or locate a predictive pattern…
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• extenuating circumstance

  • In extenuating circumstance
    Many Anglo-American legal systems do not prescribe minimum punishments for all crimes. The judge is thus free to consider all the circumstances in setting the punishment up to a prescribed maximum. Some special circumstances automatically reduce an offense to one of lesser degree; for example, provocation…
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• extradition

  • In extradition
    In the United States, extradition may be granted only pursuant to a treaty and only if Congress has not legislated to the contrary, a situation that also exists in Britain, Belgium, and the Netherlands. Germany and Switzerland extradite without a formal convention in cases where their governments…
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• immunity

  • In immunity
    In England and the United States legislators are immune from civil liability for statements made during legislative debate. They are also immune from criminal arrest, although they are subject to legal action for crime. French law and practice prohibits the arrest of a member of the legislature during a…
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• indictment

  • In indictment
    United States, a formal written accusation of crime affirmed by a grand jury and presented by it to a court for trial of the accused. The grand jury system was eliminated in England in 1933, and current law there provides for a bill of indictment…
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• local option

  • In local option
    United States, provision of a state law leaving localities free to forbid or to license certain activities within their boundaries. By accommodating differences of circumstance and feeling between different geographic regions, such provisions reduce conflict at the state level. Some laws, such as prohibition of…
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• riot

  • 
    In riot
    In the United States, the United Kingdom, and India, riot is usually a misdemeanour punishable by light sentences. However, laws in the United Kingdom provide for harsher penalties when rioters refuse to disperse after they have been ordered to do so by a magistrate. In the United…
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contribution of

• Holmes
• Marshall
  • 
    In John Marshall
    …fourth chief justice of the United States and principal founder of the U.S. system of constitutional law. As perhaps the Supreme Court’s most influential chief justice, Marshall was responsible for constructing and defending both the foundation of judicial power and the principles of American federalism. The first of his great…
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• Taney
  • 
    In Roger B. Taney: The Dred Scott case
    …federal courts, remains a magnificent statement of constitutional federalism. Under Taney’s leadership federal judicial power was expanded over corporations, the federal government was held to have paramount and exclusive authority over foreign relations, and congressional authority over U.S. property and territory was vigorously upheld. His conflict with President Lincoln over…
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definition of

• cities
  • 
    In city
    …communities by virtue of some legal or conventional distinction that can vary between regions or nations. In most cases, however, the concept of city refers to a particular type of community, the urban community, and its culture, known as “urbanism.”
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• conscientious objectors
  • In conscientious objector
    …relatively liberal policy of the United States began in colonial Pennsylvania, whose government was controlled until 1756 by Quaker pacifists. Since the American Civil War and the enactment of the first U.S. conscript law, some form of alternative service has been granted to those unwilling to bear arms. Under the…
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• referendum and initiative
  • 
    In referendum and initiative
    …and the optional referendum in U.S. states and municipalities. The obligatory referendum on amendments to state constitutions proposed by state legislatures was first adopted by Connecticut in 1818 and has become the prevailing method for the amendment of all state constitutions. Some states require a referendum on bond issues; and…
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• treason
  • In treason
    In the United States, treason was defined restrictively by the framers of the Constitution. History had taught them that men in power might falsely or loosely charge treason against their opponents; therefore, they denied Congress the authority to enlarge or reshape the offense. Treason against the United…
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effect of

• conflict of laws
  • 
    In conflict of laws: Rationale behind choice of jurisdiction
    In the United States this is the function of the due process clause of the Fourteenth Amendment of the Constitution, which limits the exercise of the jurisdiction of state courts to protect defendants against unreasonable burdens. The Fifth Amendment similarly limits federal courts in asserting jurisdiction in…
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• full pardon
  • In pardon
    In the United States the matter is much less clear, although the Supreme Court has held that a pardon blots out guilt and makes the offender “as innocent as if he had never committed the offense.” Some U.S. states have held that a pardon does not remove…
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• international law
  • 
    In international law: International law and municipal law
    …legislation is supreme in the United States even if it breaches international law, though the government may be held liable for such a breach at the international level. In order to mitigate such a possibility, there is a presumption that the U.S. Congress will not legislate contrary to the country’s…
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• juvenile court
  • In juvenile court
    …much disagreement, especially in the United States, over whether the juvenile court’s informality helps or hurts children. Some argue that, with crowded court calendars and incompetent judges, the court’s purpose is thwarted and that the child is stripped of the rights of criminal defendants with no corresponding relaxation in severity…
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method of

• inheritance
  • 
    In inheritance: Critiques of inheritance
    In the United States, although the federal tax on succession depends solely on the size of the estate, the additional inheritance taxes levied by the states are widely patterned upon the closeness of relationship. This method is also employed in numerous other countries but not, since 1949,…
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• interrogation

process of

• impeachment
  • 
    In impeachment
    …the federal government of the United States, the House of Representatives institutes impeachment proceedings by authorizing a formal inquiry by the House Judiciary Committee, which may then recommend articles of impeachment (an impeachment resolution) for a vote by the full House (articles of impeachment may also be introduced in the…
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• judicial review
  • 
    In judicial review
    …fourth chief justice of the United States (1801–35), in Marbury v. Madison (1803), that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress. There was, however, no express warrant for Marshall’s assertion of the power of judicial review in the actual text of…
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  • In constitutional law: Judicial review
    …written constitutions came from the United States. The United States also gave the world an institution that has become a fundamental feature of many contemporary constitutional systems: judicial review. Rigid written constitutions allow for the existence of special state agencies that ensure the conformity of ordinary legislation to the rules…
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  • In constitutional law: Applications of judicial review
    …of judicial review in the United States have been enormous. From the late 1930s through the 1960s, a liberal Supreme Court used its powers of judicial review to broaden democratic participation in government and to expand the rights of citizens, especially those of minorities and the accused. Beginning in the…
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role of

• attorney general
  • In attorney general
    …of attorney general of the United States was created by the Judiciary Act of 1789 that divided the country into districts and set up courts in each one, along with attorneys with the responsibility for civil and criminal actions in their districts. The attorney general, a member of the cabinet,…
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• coroner
  • In coroner
    In the United States the office is usually elective, but in some states it may be appointive. About half the states have a coroner’s system; in some of the others the sheriff or the justice of the peace performs his functions, while in still others the coroner’s…
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• justice of the peace
  • In justice of the peace
    In the United States, justices of the peace are elected or appointed and sit on the lowest of the state courts hearing minor civil matters and petty criminal cases, usually misdemeanors. They officiate at weddings, issue arrest warrants, deal with traffic offenses, and hold inquests.
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• oath
  • 
    In oath
    … proceedings, such as in Anglo-American legal systems, often has to swear by the following oath: “I do solemnly swear that the testimony I am about to give will be the truth, the whole truth, and nothing but the truth. So help me God.”
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• prosecutor
  • In prosecutor
    In the United States, however, states and counties have their own prosecutors. Only on the federal level is the system unitary, a district attorney being appointed by the U.S. attorney general’s office for each federal district (see attorney general).
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• public defender
  • In public defender
    …defenders, used primarily in the United States, are to be distinguished from assigned counsel (q.v.), who are private lawyers appointed by the courts to handle particular cases. See also legal aid.
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structure of

• legal profession
  • In Missouri Plan
    …subsequently was adopted by other U.S. jurisdictions. It involves the creation of a nominating commission that screens judicial candidates and submits to the appointing authority (such as the governor) a limited number of names of individuals considered to be qualified. The appointing authority chooses from the list, and any one…
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  • 
    In legal profession: The bar’s independence
    In the United States and, to a lesser degree, other liberal-democratic states with well-developed legal professions, important scholars have argued that the bar has steadily been losing the very qualities—including most notably independence from its clientele—that distinguish the practice of law from the conduct of any business.…
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  • 
    In legal profession: Public-directed practice
    In the countries of Anglo-American influence, at least until recently, appointment (or, in some U.S. states, election) to a judgeship has been viewed as the crowning achievement of a long and often distinguished legal career. In the Continental countries, by contrast, a law graduate who wishes to be a…
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  • 
    In legal education: Levels of study
    In both the United States and England, entry requirements vary according to the prestige of the law school.
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use of

• bill of attainder
  • In attainder
    …passed by some of the American colonial legislatures until the Constitution forbade them. In applying these prohibitions, the Supreme Court of the United States has expanded the historical conception of attainder. It invoked these clauses in 1867 in Cummings v. Missouri and Ex parte Garland to strike down loyalty oaths…
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• brief
  • In brief
    In the United States a brief is a written legal argument that is presented to a court to aid it in reaching a conclusion on the legal issues involved in the case. It is invariably employed in appellate courts and is of the utmost importance when no…
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• certiorari
  • In certiorari
    In the United States certiorari is used by the Supreme Court to review questions of law or to correct errors and to ensure against excesses by the lower courts. Such writs are also issued in exceptional cases when an immediate review is required. For the Supreme Court…
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• deportation
  • In deportation
    In Anglo-American law today, deportation is a civil enactment imposed on persons who are neither native-born nor naturalized citizens. The alien is ordinarily, but not necessarily, returned to the country from which he came, usually because he has entered the deporting country illegally or without proper…
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• law codes
  • In law code
    …as Great Britain and the United States, general law codes are the exception rather than the rule, largely because much of the law is based on previous judicial decisions. In the United States these codifications tend to be narrower, covering different types of procedure or penal and probate law. States…
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• three strikes law and capital punishment
  • 
    In punishment: General deterrence
    Research in the United States, however, has shown that some jurisdictions that use the death penalty have higher murder rates than those that do not. There are several interpretations of this pattern. Some argue that use of the death penalty is a response to, but not a cause…
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  • 
    In punishment: Effectiveness of punishment
    …strikes” legislation passed in many U.S. states in the 1990s, which imposed mandatory prison sentences after three convictions, was found to have no effect on crime rates. Even the death penalty, as noted above, appears to do little to reduce murder rates, since most jurisdictions that use it (including several…
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