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This module deals with the legal system of the United States. By the end of this module, you will be able to locate
online guides to the United States legal system
Acts and Regulations passed by US Federal, State and Territorial assemblies
sources for the legislative history of US Acts
case law relating to United States courts.
The United States legal system is an important source of comparative law for the Australian courts. This is not surprising given the shared origins of the two legal systems in the English common law and the strong influence of the US Constitution on its Australian counterpart. Australia and the United States are both federations with a broadly similar division of jurisdiction between State and Federal courts.
Despite the similarities, there are significant differences. After more than two centuries, the common law in the United States is quite distinct from its English counterpart. Australian law, in contrast, remains much closer to the English model. Moreover, many of the superficial similiarities between the Australian and United States court systems disappear under closer inspection. In Australia, the Supreme Courts in each State have both first instance and appellate jurisdiction. In the United States, Supreme Courts in the States are almost always limited to appellate jurisdication.
For most postgraduates, the major sources of information on the United States legal system will probably be either LexisNexis or Westlaw.
If your institution does not subscribe to either Lexis or Westlaw, you can still access a wide range of free online materials on the United States legal system through the Legal Information Institute (LII). The LII site provides free versions of the US Code, US Supreme Court opinions, and topical pages providing concise guides and Web links for a wide range of law topics.
There are a number of useful guides to source of United States law on the Web. One of the most authoritative is the Guide to Law Online. This source is prepared by the staff of the Law Library of Congress.
In a 2003, Australian law librarians Gary Meyers and Nerida Gilbert provided a comprehensive review of the sources for US law. This article is available online at the Research One site and provides an Australian perspective on the US system.
American Jurisprudence and Corpus Juris Secundum
The United States is relatively well-served in terms of legal encyclopedias. American Jurisprudence, 2nd edition (often referred to as Am.Jur.2d) and Corpus Juris Secundum (CJS) are the standard guides to the broad scope of US law. In their printed form, these works consist of a series of volumes summarising US Federal and State law on a topic-by-topic basis. Unfortunately, both Am.Jur.2d and CJS are incomplete in terms of citations. American Jurisprudence cites only major or landmark cases. CJS cites only relevant cases since 1938. LexisNexis has Am.Jur.2d, but not CJS. Both Am.Jur.2d and CJS are available online through Westlaw.
Another important source is Restatements of Law, published by the American Law Institute (ALI). Each Restatement covers a broad area of law: examples include Torts, Trusts, Conflict of Laws, Property. The primary authors are always among the leading authorities on the topic. Although not considered a binding authority by US courts, the Restatements are considered persuasive and they are frequently cited in court decisions. The Restatements of Law are currently their third series (which began in 1987). The Restatements of Law are available in paper and through LexisNexis and Westlaw.
The Harvard Law School has a very useful page on using the Restatements of Law.
Several legal publishers publish encyclopedias of State law. Many States have no legal encyclopedia, and published works differ in terms of depth of coverage and quality. Individual titles are available online through LexisNexis and Westlaw.
The American Law Reports (ALR) and ALR Federal series also provide a topic-based summary of existing US law. Each series consists of thousands of individual articles which aim to summarise the case law relevant to a specific area of practice. Entries include cross-references to other West products, extensive case histories, as well as references to relevant legislation and articles in law reviews. ALR and ALR Federal have been published in several editions (the current editions are ALR 6th and ALR Fed 2d.).
The ALR and ALR Federal are available through Westlaw.
The Constitution of the United States is the oldest written national constitution still in operation, dating back to May 1787. During the last two centuries, the US Constitution has been amended twenty-seven times. The first ten amendments are termed the Bill of Rights and are critical documents in US political and constitutional history. Dating from 1791, the Bill of Rights guarantees a number of fundamental civil rights, including freedom of speech, press, religion and assembly.
The US Government Printing Office (GPO) Access site provides access to the latest text of the Constitution.
An indispensible guide to the US constitutional law is a publication with the unwieldy title of The Constitution of the United States: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States. This work is prepared by the Congressional Research Service of the Library of Congress. It contains the text of the constitution, along with commentary relating to the decisions of the US Supreme Court. New editions of this work appear at irregular intervals. The Congressional Research Service publishes cumulative supplements. The GPO Access site includes the full-text of the latest edition (2002), as well as the supplements from 2004 and 2006.
Except for the District of Columbia, each of the US States and Territories has its own Constitution. Some predate the Federal Constitution. The oldest, the Constitution of Massachusetts, dates back to October 1780. Constitutions of the most US States are available online using the links from the LII site.
The United States Congress is made up of two houses: the House of Representatives and the Senate. Congress meets each year from 3 January to 31 July. Congressional sessions stretch over two years.
Each US State and Territory has its own legislature. Most are bicameral, but there are a few unicameral legislatures. Legislative terms differ widely between State and Territories assemblies.
A Bill is the normal form in which proposed legislation is presented to Congress. Thomas.gov has the full-text of Bills from the 101st Congress (198990) onwards.
LexisNexis and Westlaw provide access to past Bills through cross-links and annotations to the United States Code.
Federal statutes are termed Acts. To become a statute, a Bill must be passed by both Houses of Congress and be signed into law by the President. The process of making an Act is detailed on the Tying
it all Together page at the House of Representatives site.
Recent Acts are available on the Web from the Private and Public Laws page on the GPO Access site. This page provides links to Acts from the 104th (199596) session of Congress onwards.
Acts first appear as slip laws. At the end of each Congressional session, the slip laws are published in bound volumes as the United States Statutes at Large. Every six years these subjects are rearranged according to subject and published as the United States Code (USC).
GPO Access provides the USC as of 3 January 2005 with earlier editions and annual supplements. The LII site offers the latest available version of the USC.
Perhaps more useful than the USC itself is the United States Code Annotated (USCA) published by West. This contains the full text of the USC with case law notes and cross-references. Updates to the USCA are available through the United States Code Congressional and Administrative News (USCCAN), also by West. USCCAN is published every two weeks when Congress is in session and once a month when Congress is not in session. Both the USCA and USCCAN are available in print and online through Westlaw.
LexisNexis provides an analogue to the USCA, the United States Code Service (USCS).
In the United States delegated or secondary legislation issued by a Federal department or agency are termed federal regulations or rules. New regulations are published in the Federal Register. Proposed Federal regulations are available for comment at Regulations.gov.
The regulations published in the Federal Register are codified in Code of Federal Regulations (CFR). The CFR divided into 50 titles which represent broad areas subject to Federal regulation. Each volume is updated once each calendar year.
GPO Access has the current CFR as well as the text of previous editions back to 1997.
Westlaw provides the full text of the CFR in its Code of Federal Regulations database. In addition, Westlaw includes Regulations Plus, which allow you to locate prior versions of a regulation, including relevant citations and annotations.
LexisNexis provides the full text of the CFR. Regulations can also be located in LexisNexix by authorising statute.
Bills before State and Territory legislatures are usually available online at the Web sites for each legislature. The National Conference of State Legislatures (NCSL) has a database of links to these sites, as does the LII
Statutes passed by the US States and Territories are first published as session laws and later codified in State or Territory Legislative Codes. HeinOnline offers a digital Session Laws collection, which contains the session laws of all 50 US States from 2003 onwards. Legislative Codes are available from Web sites of the individual States and Territories or through LexisNexis or Westlaw. In addition, Westlaw offers annotated versions of the Legislative Codes for 22 states.
Departments and agencies at the State and Territory level issue regulations and rules, as do municipalities and counties. Most States and Territories publish new regulations in a State Register. Regulations are usually codified in the State or Territory Administrative Code.
TheLII site includes links to the State Register or Administrative Code for most States and Territories. LexisNexis and Findlaw also include links to State Registers. There is a guide to finding State Regulations at the Lexis site in the United States.
As in Australia, US courts often turn to the legislative history of a Bill as an aid to statutory interpretation.
In the United States, the components of the legislative history for a Federal Bill include:
the original text of the Bill
amendments made to the text of a Bill as it proceeds through Congress
statements by Floor Managers and Committee Chairmen
transcripts of debates on the floor of the House or Senate.
Much of this material is available online through the following:
The Web sites of the House and Senate. These sites include the text of the US equivalent to Hansard, the Congressional Record.
GPO Access. The GPO Access site provides the full text of Bills, Committee Reports, the Congressional Record, and selected hearings.
Thomas.go. This site includes the full text of bills, committee reports, the Congressional Record, as well as selected text from hearings held before relevant House or Senate Committee prior to debates and votes on Bills. The Thomas.gov site also provides Bill tracking from 1973 onwards.
West''s USCCAN includes the legislative history of Federal Acts. It allows you to find material from committee reports, and statements about a Bill by the relevant Floor Manager (the Congressman designated to lead and organise consideration of a Bill on the Floor of the House or Senate) and Committee Chairman. These sources are frequently cited by US courts in the interpretation of legislation. However, the USSCAN only selectively cites Committee Reports and Conference Committee Reports, and does not include transcripts of hearings held in relation to legislation.
The Marian Gould Gallagher Law library at the University of Washington School of Law has an excellent, up-to-date page on the sources of US Federal Legislative History. There is also a useful guide at the site of the Law Librarians Society of Washington DC.
The evidence for the legislative history of Bills differ greatly from legislature to legislature at the State and Territory level. Most of the aids to legislative history at the Federal level are missing in the case of the States and Territories. For many States, there are no verbatim records of floor debates, formal reports of standing committees or transcripts of committee hearings. The Indiana University School of Law Library – Bloomington has a collection of links to the sources of State legislative history on the Web. This should be your first point of departure. Unfortunately, this collection covers only States. In the case of Territories (District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin Islands and the Northern Mariana Islands), see the Web sites of Territory legislatures. These are available through links at the NCSL site or from LII.
At the apex of the United States Federal court system is the Supreme Court. The Supreme Court hears a limited number of the cases each year, usually those involving important questions regarding Constitutional or Federal law. Below the Supreme Court are the Circuit Courts of Appeal. Each Court of Appeal hears appeals from District Courts within its Circuit, as well as appeals against the decisions of local Federal agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialised cases. The Circuit Courts of Appeal are generally courts of last resort, with appeals to the Supreme Court being rare. The Circuit Courts are not bound to follow the decisions of other Circuit Courts. Below the Circuit Courts are the District Courts, which have first instance jurisdiction to hear most Federal cases. Although covering a separate Federal jurisdiction, Bankruptcy Courts are usually grouped under the heading of the District Courts.
Nearly all of the State and Territory court systems follow the three-tiered Federal structure. The highest courts (usually termed the Supreme Court, State Court of Appeals or Applelate Courts) hear appeals and may have original jurisdiction over specific categories of civial and criminal cases. Below the Supreme Courts are the State Superior Courts. Also known under a variety of names, the State Superior Courts have original jurisdiction over major civil matters and serious crimes. They also hear appeals from the courts at the base of the hierarchy, the inferior courts. These take a wide variety of forms: magistrate court, municipal court, justice of the peace court, police court, traffic court, and county court. Inferior tribunals hear only minor civil and criminal cases. There are also special tribunals in most states including juvenile courts, divorce courts, probate courts, family courts, housing courts, and small-claims courts. The United States is unique among common law jurisdictions in that judges for inferior tribunals in States and Territories are sometimes elected by popular vote rather than appointed.
The official record of the decisions of the Supreme Court are termed United States Reports. These are available online from a number of offiical or semi-official sources. Reports from 1991 (vol 502) onwards are available at the Supreme Court site. FedWorld/FLITE provides a database of all United States Reports between 193775 (vol 300422). This database can be searched by case name or keyword and the text of reports are available in ASCII format. FindLaw offers a searchable database of Supreme Court decisions since 1893 (vol 150 onwards). This source is browsable by year and US Report volume number, as well as searchable by citation, case title and keyword.
Unfortunately, a considerable period of time usually elapses between the announcement of a Supreme Court decision and the appearance of the final, corrected version of the relevant Report. For this reason, some legal publishers provide unofficial reports in advance of the final publication. LexisNexis offers advance publication of the Supreme Court''s decision in the form of the United States Supreme Court Reports, Lawyers Edition. This source includes case summaries, headnotes and cross-references to other LexisNexis materials. The Supreme Court Reporter published by West provides a similar service. Reports in this series are enhanced with headnotes, key numbers, and summaries. The Supreme Court Reporter is available in print and in electronic form through Westlaw.
There is no authorised report series for the Circuit Courts of Appeal as a whole. However, the Federal Reporter published by West provides a semi-official source of selected decisions of the Courts of Appeal. The Federal Reporter is currently in its third series (which began in 1993) and is available through Westlaw.
Georgetown Law Library provides a searchable database of Federal Circuit Court opinions from July 1995 onwards, although the latest opinions for this Circuit are available only from Federal Circuit site. Justia.com offers a search engine which allows you to search the options of the US Court of Appeals or browse opinions by Federal Reporter Series, Circuit or Year. FindLaw and LII have links to the opinions of the different Federal Circuit Courts.
LexisNexis offers American Law Reports Federal. This source contains selected Circuit Court opinions with annotations.
There is no single authorised report series which covers all District Courts. The Federal Supplement, published by West, is the main source used by US legal professionals. The Federal Supplement is currently in its 2nd series (which began in 1998). Each case is extensively annotated with links to relevant material elsewhere in the West National Reporter System. The Federal Supplement is available electronically through Westlaw.
District Court opinions are also accessible through the Web sites of the individual courts. LII provides links to the Web sites of District Courts arranged according to Circuit and District. FindLaw provides links organised according to State
LexisNexis offers the text of the District Court opinions included in the Federal Supplement (with the page numbering of the Federal Supplement for citation purposes).
During recent decades, many jurisdictions in the United States have adopted non-publication and non-citation rules which allow appellate courts to prohibit the publication of all or some of their decisions and opinions. Typically, only those opinions designated as "for publication" are included in the official report series and regarded as having precedential value. In theory, opinions designated as unreported cannot be cited in future court filings or in other court proceedings. At present, 85% of the opinions of the United States Courts of Appeal are unreported. The equivalent figures for the California Court of Appeal is as high as 93%.
Non-publication developed as a result of the flood of litigation which threatened to swamp the US courts in the late twentieth century. The practice meant that courts could greatly reduce the time spent preparing opinions for publications. Critics have argued that non-publication rules are unfair and infringe Constitutional freedoms. Another criticism is that non-publication rules deny litigants the right to cite favourable court decisions on the grounds of administrative convenience. In addition, it has been asserted non-publication results in a two-track appellate court system. The fear is that only the wealthier or better connected litigants receive well-reasoned, publishable opinions. Poorer and less-powerful litigants, such as most criminal defendents, must be content with less-well reasoned opinions, which can be hidden using the not-for-publication rule.
Decisions of State courts are available through the National Reporter System (NRS), a family of regional law reports which covers both State and Federal courts in different regions of the United States.
The importance of the NRS is such that the National Reporter System is now the official reporter for some US States, which no longer publish their own authorised series.
The American Digest series covers both all Federal and State court decisions reported by elsewhere by West. The volumes in the series are divided according to subject and topic. Updates are provided through an annual General Digest and Decennial Digests. The series is extensively indexed and includes tables of cases affirmed, reversed or modified. A cumulative index is issued every decade. The American Digest is available both in paper and through Westlaw.
An invaluable source of US case law is Shepard''s Legal Citation Service, available on LexisNexis. Shepard''s allows you to determine the reception of a particular decision at both the State and Federal level. Shepard''s is relatively easy to use: find the case you require in LexisNexis and then click on the Shepardise button at the top of the LexisNexis screen.
The Westlaw counterpart of Shepard''s is KeyCite. KeyCite allows you to trace the history of case, retrieve a list of all citing cases and discover related statute law. KeyCite also covers US statutes, providing links to pending legislation, and amending or repealling session law. In addition, KeyCite Alert automatically tracks cases and alerts you to new case law by email or fax.
It is important to note that KeyCite and Shepard''s are not identical and differ in terms of coverage.
There is no single standard for US case citations. The nearest thing to an authority is The Bluebook: A Uniform System of Citation. This is the citation manual developed for the use of four major law journals: the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review and the Yale Law Journal. The Bluebook, however, is not the only widely-accepted style guide. The US Association of Legal Writing Directors (ALWD) has its own standard, which is set out in the popular ALWD Citation Manaul. There is also the Maroon Book, which sets out the citation standard for University of Chicago publications. Both West and LexisNexis include additional information in their citations, so as to refer users to their specific products.
As in Australia, cases can be published in multiple series. For this reason, the American Association of Law Libraries (AALL) has created a medium-neutral citation system, which is available online.
The Basic Guide to Legal Citation is a free online guide to US legal citation. Equally useful is the Cardiff Index to Legal Abbreviations, which provides the abbreviations used for US court report series.
online guides to the United States legal system
Acts and Regulations passed by US Federal, State and Territorial assemblies
sources for the legislative history of US Acts