Put ten different questions to the text (general, special, alternative,disjunctive questions)
LAW OF THE UNITED STATES
3.2.3.1 Read and translate the text Law of the United States.
3.2.3.2Find in the text English equivalents for the following terms; write them down in your LEGAL VOCABULARY.
| 1. авторскоеправо 2. антимонопольныйзакон 3. вводитьзаконы 4. возбуждатьдело 5. даватьправа (привилегии) 6. действующийзакон 7. делегироватьполномочия 8. договор, ратифицированный Сенатом 9. договорное право 10. единообразный закон 11. закон о правонарушениях (= деликтное право) 12. закон о товарных знаках 13. закон, принятый Конгрессом 14. законодательная власть 15. законодательное положение 16. защита (на суде) 17. интеллектуальная собственность 18. иск (в суде) 19. исключительная компетенция федеральных властей (в США) 20. исполнительная ветвь власти 21. международные отношения 22. морское право 23. муниципальные распоряжения 24. нарушать права 25. не имеющий законной силы, недействительный (о законе) 26. неограниченные полномочия 27. ограниченные верховные полномочия 28. орган исполнительной власти 29. патент 30. перечислить в Конституции 31. положительно выраженное предоставление права 32. поправка к… 33. постановление исполнительной власти 34. право собственности (= вещное право) | 35. предоставление правомочий на основании статута 36. прецедентное право 37. приказ об истребовании дела вышестоящим судом 38. принятие закона, введение закона в силу 39. противоречить конституции 40. расширительное толкование 41. Сборник действующего законодательства 42. Свод законов 43. свод норм 44. семейное право 45. слушать иск 46. снабжать примечаниями, комментариями 47. спор о юрисдикции при несовпадении относящихся к ней правовых 48. статут с внесенными в него поправками 49. статутное право 50. сторонник 51. строгое соблюдение 52. судебное толкование 53. судебный процесс, иск 54. трудовое право 55. уголовное право 56. указ (декрет, ордонанс, постановление) 57. федерализм 58. федеральное правосудие 59. федеральный суд первой инстанции 60. ходатайство о… 61. широкие полномочия 62. юридическая сила 63. Федеральный регистр 64. «Позолоченный век» 65.«Свод федеральных нормативных актов» |
LAW OF THE UNITED STATES
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The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. Federal law that conflicts with the Constitution is invalid.
The Constitution and federal law are the supreme law of the land, thus preempting conflicting state and territorial laws in the 50 U.S. states and in the territories. However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual-sovereign system of American federalism (actually tripartite because of the presence of Indian reservations), states are the plenary sovereigns, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution. Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights. Thus, most U.S. law (especially the actual «living law» of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.
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At both the federal and state levels, the law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations.
Federal law
Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. Nearly all[clarification needed] statutes have been codified in the United States Code. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.
During the 18th and 19th centuries, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the military, money, foreign affairs (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail. Since the start of the 20th century, broad interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and employment law, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like insurance, Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them.
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Under the doctrine of Erie Railroad Co. v. Tompkins (1938), there is no general federal common law. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which in turn was enacted as part of the Constitution or after). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law, has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of stare decisis).
The other major implication of the Erie doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case. When hearing claims under state law pursuant to diversity jurisdiction, federal trial courts must apply the statutory and decisional law of the state in which they sit, as if they were a court of that state, even if they believe that the relevant state law is irrational or just bad public policy. And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.
If this was not confusing enough, although judicial interpretations of federal law from the federal district and intermediate appellate courts hold great persuasive weight, state courts are not bound to follow those interpretations. There is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.
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State law
The fifty American states are separate sovereigns with their own state constitutions, state governments, and state courts (including state supreme courts).
They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions 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.
Most cases are litigated in state courts and involve claims and defenses under state laws. Each year, only about 280,000 civil and criminal cases are heard in federal courts, as opposed to 27.5 million civil and criminal cases in state courts (these numbers exclude 858,000 federal bankruptcy cases, and in state courts, 4.5 million domestic, 1.7 million juvenile, and 55 million traffic cases).
All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances.
The law of most of the states is based on the common law of England; the notable exception is Louisiana, whose civil law is largely based upon French and Spanish law. The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law; as a result, the laws of any given state invariably differ from the laws of its sister states. Thus, with regard to the vast majority of areas of the law that are traditionally managed by the states, the United States cannot be regarded as one legal system, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and 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 (the basis for most personal injury lawsuits). A 2011 article found that 43 states use a multifactor balancing test usually consisting of four to eight factors, but there are 23 various incarnations because so few states use exactly the same test, and consolidating those into a single list results in 42 unique factors. Naturally, the laws of different states frequently 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, and 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 virtually any interstate transaction (commercial or otherwise). There have been three major reactions to this problem, none of which were completely successful: codification, uniform laws, and the Restatements.
The first reaction, codification, was an attempt to simplify the basic task of identifying the current state law that was (1) relevant to a particular legal question and (2) currently in force. Today, all states but Pennsylvania have completed the process of codifying all of their general statutory law into legal codes. Codification was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field. Field, in turn, was building upon early (but wholly unsuccessful) foundational work by the English legal philosopher Jeremy Bentham, who actually coined the verb «to codify» for the process of drafting a legal code.
Naturally, 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 simply call them «Codes.» Other states use terms such as «Code of [state name]», «Revised Statutes», or «Compiled Statutes» for their compilations. California, New York, and Texas use separate subject-specific codes; Maryland's code has, as of 2013, mostly been recodified from numbered articles into named articles; virtually all other states and the federal government use a single code divided into numbered titles or other top-level divisions. 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 (after the state constitution was finally amended to add the necessary exception in 1967).
In some states, codification is often treated as a mere restatement of the common law, to the extent that the subject matter of the particular statute at issue was covered by some judge-made principle at common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature. In other states, there is a tradition of strict adherence to the plain text of the codes.
The advantage of codification is that once the state legislature becomes accustomed to writing new laws as amendments to an existing code, the code will usually reflect democratic sentiment as to what the current law is (though the entire state of the law must always be ascertained by reviewing case law to determine how judges have interpreted a particular codified statute).
In contrast, in jurisdictions with uncodified statutes, like the United Kingdom, determining what the law is can be a more difficult process. One has to trace back to the earliest relevant Act of Parliament, and then identify all later Acts which amended the earlier Act, or which directly overrode it. For example, when the UK decided to create a Supreme Court of the United Kingdom, lawmakers had to identify every single Act referring to the House of Lords that was still good law, and then amend all of those laws to refer to the Supreme Court.
In most U.S. states, certain areas of the law, especially the law of contracts and torts, continue to exist primarily in the form of case law, subject only to limited statutory modifications and refinements. Thus, for example, there is no statute in most states which one can consult for answers on basic issues like the essential elements of a contract. Rather, one must consult case law, with all the complexity and difficulty that implies.
Major exceptions include the states of California, Montana, North Dakota, and South Dakota as well as the territory of Guam, all of which largely enacted Field's proposed civil code even though it was repeatedly rejected and never enacted by his home state of New York. Idaho partially enacted Field's civil code but omitted some of the contract and tort sections. Georgia initiated its own full codification separate from Field (its proponents and Field were unaware of the other's work due to the breakdown in communications that preceded the American Civil War), which resulted in the enactment of the oldest ancestor of the modern Official Code of Georgia Annotated in 1861.
Local law
States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.
It is common for residents of major U.S. metropolitan areas to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments). Thus, at any given time, the average American citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.
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