Law in the U.S. Introduced

Law in the United States Introduced

by John Bandler

The U.S. has a robust legal system which this article introduces.

In my other article on Law I summarized that law is a system of rules from our government for our society that establish rules of conduct and processes for resolving conflicts and when people break those rules.

In this article I dive deeper into the legal system of our great (but imperfect) country.

Laws include rules for conduct and rules to resolve conflict

Laws provide rules on what to do, or not do. These might be criminal laws or civil laws and regulations. These are areas of substantive laws.

Laws also provide rules on how to resolve a conflict. For example, if the government alleges that a defendant violated a criminal law, there is a process and system for adjudicating that allegation. If one party alleges a civil wrong was committed by another, there is a civil process and system to allege and resolve that dispute. These are areas of procedural law.

Sources of laws in the United States

Laws come from many different places and government entities.

First, we can categorize them by federal (from the U.S. government) and state (from the fifty states, and don't forget about the District of Columbia and territories). The federal government and states are each "sovereign" government entities to an extent, with their own set of laws.

Next, we think about four important areas for each sovereign entity:

Constitution
Statutes
Regulations
Court decisions.

We can show that in this simple diagram.

Constitutions are foundational legal documents, such as the U.S. Constitution and then of each state. The U.S. Constitution established our government and legal framework, including the rights of states, so that should be our first legal starting point.

Statutes are duly enacted laws, from the federal government or a state government. These have gone through the legislative process, passed by the legislature (e.g. U.S. Congress or state equivalent) and then signed by the executive (e.g., President or Governor).

Regulations are rules duly promulgated (put forth) by a federal or state regulator.

Law infographic

Court decisions are written decisions of a judge or group of judges (appellate court) which makes a ruling in a particular case but also has broader legal weight that can apply to future cases. This principle of broader legal weight is known as "precedent", "stare decisis", or "judge made law".

We can add a little more text to our diagram like this.

Federal vs. state law

Law in our country is complex because of the mixture of federal (U.S.) laws and state laws of the 50 states.

A federal law has force throughout the entire country.

A state law has force mostly within the state.

As you assess law and legal requirements, ask yourself where it is from, e.g.:

Federal (U.S.), or
State (and identify which state).

Substantive law vs. procedural law

Law can also be categorized as "substantive" or "procedural".

It helps to assess whether it is a rule of conduct (what to do, or what not to do) or a rule to resolve a conflict or investigate something (process and procedure oriented).

Substantive laws relate to conduct. Certain criminal laws prohibit certain conduct, someone could be arrested and prosecuted for violating those laws, and jail could even be a penalty. Certain civil laws also prohibit certain conduct or require certain actions. Someone could be sued civilly for violating those rules and be required to pay money to compensate the plaintiff.

Procedural laws relate to process. They try to ensure the process for resolving a legal dispute is orderly and fair to both sides.

Criminal law vs. civil law

Another category to focus on is criminal law versus civil law. They have many important differences.

Criminal law concerns government bringing criminal cases against individuals and sometimes against organizations. The government participants include police, special agents, prosecutors, and all the other people who work with them. There are a number of protections for defendants because of the power of government.

Civil law is about more individualized and mostly monetary harms. Anyone can bring a civil case, including individuals, companies, and the government. Consequences of a civil case almost never involve jail (except in extreme cases where a party is flagrantly and repeatedly contemptuous of the court). The parties are treated on a more equal footing.

There are many areas of civil law.

Principles of law in the U.S.

Some principles of law that are important (to me at least):

Our county is a nation of laws
No person should be above the law
Our highest law is the U.S. Constitution
Citizens play an important role in our country's law and legal system.
- Citizens have the right and responsibility to vote (and cast an informed vote)
  - The officials we elect create laws and enforce laws
- Citizens have the right and responsibility to serve on juries (and uphold that important duty)
  - Juries are the final test of a legal dispute
Law affects every one of us.

In this representative democracy, citizens elect the government that creates and then enforces and administers the law.

Fairness of the law and fairness of enforcement

It is helpful to separate two issues:

What is the law (or what should it be), and
How should the law be enforced and punished,

Laws could be fair, unfair, or somewhere in between. There will always be room for reasonable people to debate those issues (and remember that not every person is reasonable).

The next issue is enforcement of laws, and whether that is fair or not. Laws can be interpreted and enforced fairly, with consequences tailored to the infraction and person. Or they can be enforced unfairly, arbitrarily, or capriciously. Again, reasonable people will debate this as well.

Theory vs reality

The theory of our system of law and government is beautiful. Even within a wonderful and perfect theory, we know that reasonable people will disagree, and some people will be unhappy with a result. It will be messy.

If theory predicts a mess, our reality is even messier.

First, citizens are people, and they can be influenced and even manipulated. Their votes will be influenced by outside forces, and might that influence extend towards manipulation and deception?

Second, other factors indicate that not every law is fair, and not everyone gets equal justice.

A billionaire or wealthy corporation can influence the law and regulation itself by hiring lawyers, lobbyists, public relations firms, and former government officials to influence that legislation and regulation including public perception of it.

Third, parties to a legal dispute can purchase legal representation or other access that may grant them a different result. They can fund litigation that might push smaller adversaries into defeat. Some litigation can simply be a war of attrition, costing each side in lawyer’s fees until one or both decide it is more cost effective to settle. Lawyers try to get a win for their side—litigation is a battle, even for ethical honest lawyers.

We want to be realistic and practical, not be overly optimistic, nor pessimistic and cynical. Here’s one way to think about it:

The U.S. legal system is the worst, except for everything else.

And here’s another:

The U.S. legal system is not perfect, but it is one of the best systems around.

We are a nation of laws and we all play a role in our country and legal system.

Other countries recognize our rule of law, and that is why they trust it to store their investments and do business within it.

Conclusion

Laws and our legal system are important to know about. We are a nation of laws and we all play a role in our country and legal system. We all need to make legal decisions regularly (whether we know it or not), and eventually will face a significant legal issue that requires we obtain legal advice and properly understand it.

This short article is not tailored to your circumstances and is not legal or consulting advice.

If you want to learn more about law, there is lots on this site, and my Udemy course.

If your organization needs help with improving its internal documentation and compliance with laws and regulations, including regarding cybersecurity and protecting from cybercrime, let me know.

Additional reading

Originally posted 9/3/2024, updated 9/3/2024.