Sources of Law in the United States (2024)

Sourcesof Law

Laws are the rules of conductestablished to maintain stability and justice in a community. When taking theoath of office on August 9, 1974, President Gerald Ford referred to the UnitedStates’ government and political framework by stating “Our great republic is a government of laws and not men.”

Laws provide ways for our society toresolve disputes civilly and ensure a peaceful and well-functioning society.

In this presentation, we will examine thefour primary sources of law at the state and federal levels. These four sourcesof law are the United States Constitution, federal and state statutes, administrativeregulations, and case law.

United States Constitution

Each country’s legal system has its ownsources of law, but for those systems that enact Constitutions, theConstitutions are the most fundamental of the sources of law.[1] A Constitution is acharter that establishes the government and the rules under which thegovernment must run.

The United States Constitution, therefore,is our “supreme law of the land” (in its own words). Everything within it isbinding. Think of the constitution as the “ultimate” source of law, the sourcethat all others draw from. Federal statutes, state statutes, judicial opinionsand administrative laws must all comply with the Constitution’s rules.[2] The U.S. Constitution isinternationally revered for its organization, its subject matter and itsgroundbreaking nature at the time it was ratified.[3]

The Constitution both establishes therules for the functioning of the United States government and sets forth thefundamental freedoms and rights that each person enjoys.[4] While the Articles aremostly about the functioning of the government, the first ten amendments to theConstitution make up the “Bill of Rights,” which protect individual liberties.For example, the First Amendment prohibits Congress from making laws thatabridge freedom of speech. The Second Amendment prohibits infringement on theright to keep and bear arms and the Fourth Amendment guarantees a person’sright to be secure against unreasonable searches and seizures. Over the last230 years, how these amendments are applied in our society has evolved, buttheir foundational protections have remained steady.

The Constitution also discusses thepower and responsibility of the government and provides guidance on how thegovernment is organized. The first three articles describe the structure andscope of the federal government. Article I establishes the structure and powersof the Congress. Article II describes the executive branch of government,specifically delineating the roles of the President and Vice President. ArticleIII establishes the judicial power of the federal courts.

Federal and State Statutes

Federal and state legislation, alsoknown as statutory law, is the second important source of law in our legalsystem.

The United States Congress enactsfederal statutes and these statutes apply in all 50 states. An example of afederal statute is the Clean Air Act, a federal law that regulates airemissions from stationary and mobile pollution sources. That act is a federallaw and as such, it applies to every stationary and mobile source of airpollution in every state across the country.

Federal statutes passedduring a legislative session are published in the United States Code, which isbroken down into titles, with each title tackling a different subject matter.For example, Title 11 covers bankruptcy, Title 18 covers federal crimes and Title26 covers taxes.

State statutes are enacted by statelegislatures and apply only within the state. Though they regulate activitywithin a state, they must give way to federal statutes in cases of conflict.The United States Constitution’s “supremacy” clause, Article VI, Clause 2, providesthat the Constitution and the federal laws are “the supreme Law of the Land.”[5] State statutes thatconflict with federal law are “preempted.”

Administrative Regulations

Administrativeregulations are rules issued by state or federal administrative agencies.Examples include the Environmental Protection Agency and Internal RevenueService. These regulations provide the rules for how a law will be applied andenforced. Federal agencies developing regulations receive their authority toregulate and enforce from Congress, through an “enabling” act, which grants anddefines the scope of its authority.[6]

At the federal level, administrativeregulations are published and updated annually in three different places:

·TheCode of Federal Regulations which are the main source of regulatory laws;

·TheList of Sections Affected, which are brief summaries of affected sections offederal law; and

·TheFederal Register, which are detailed explanations of the regulations.[7]

Administrative regulations are developedthrough two types of rulemaking, informal and formal. Under informalrulemaking, an agency proposes a rule, the public submits written comments andthen the agency decides how to create a final rule.[8] Informal rulemaking ismore fluid and requires an agency to provide general notice with the time,place, and nature of the proceeding so that the public can comment on theproposed rules. In formal rulemaking, administrative agencies can issueregulations after meeting certain procedural requirements under theAdministrative Procedure Act. That Act stipulates that the proponent of a rulecarry the burden of proof that the necessary steps were complied with. As such,formal rulemaking can be costly and time consuming.

Case Law and JudicialOpinions

Judge-made law, known as case law, is alsosometimes referred to as the “common law.” Legislatures may write broadstatutes and allow judges to interpret the meanings of the laws by applyingthem to cases involving real people and businesses. Alternatively, issues cancome up that have not been dealt with by statutes. In such cases, courts canapply definitions and rules based on the traditional way these matters havebeen dealt with. For example, state law rarely defines the elements of torts orthe building blocks of contracts. These are matters that are defined based ontradition, dating back centuries, often to English law.

Oncea court renders a decision, its decision, or “opinion” becomes precedent thatmust be applied in subsequent factual scenarios. When a court uses rulings fromprior cases to reach a decision, it is abiding by the principle of stare decisis. Stare decisis promotesevenhanded and predictable application of laws.[9] However,not every court is required to follow the decisions of every other court.Courts only need to follow the decisions of appellate courts within their ownsystem. The decisions of other courts may be “persuasive” authority but are not“mandatory” authority. For example, the New Jersey state court must follow thedecisions of the New Jersey Supreme Court, but need not follow the decisions ofother lower-level New Jersey courts or even of the Pennsylvania Supreme Court.[10]

Thefederal court system also has trial courts and appellate courts. The trialcourts are called “district” courts. Appellate courts to which trial courtdecisions can be appealed are known as the “circuit” courts of appeal. Circuitcourt decisions can be appealed to the United States Supreme Court. So, forexample, a Second Circuit Court of Appeals decision must be followed by afederal court in Vermont since Vermont is in the Second Circuit. Vermont courtsare not obligated to follow decisions from the First or Third Circuit Courts ofAppeals. All these courts (and, in fact, all courts in the country) arerequired to follow decisions by the United States Supreme Court.

Over two centuries, the United States’legal system has become a model for other nations across the world, which seekto develop a diverse array of laws. In this presentation, we’ve discussed thefour sources of law that interact, overlap, and work in conjunction with oneanother to create a robust set of legal guidance.

Footnotes