U.S. Legal Institutions

• Author: Kevin J. Fandl
• Profession: Director of the Global Legal Education Institute
• Pages: 7-37

U.S. Legal Institutions

Chapter 2

7

Introduction

The United States government is unique from many countries be-

cause it operates as a federal republic, meaning there is a central

government (the federal or U.S. government) and 50 state govern-

ments. This creates unique issues of law, such as preemption, that

need to be clearly understood before diving into the substantive

areas of contracts or commercial law.

This section will provide an overview of the U.S. federal legal

system, including the courts, the Congress, and the executive. It

will then compare federal and state judicial structures and point out

some unique terminology used by the states. Once that foundation

is laid, we will explore the topic of jurisdiction by explaining what

it takes to bring a case to trial or to appeal after an adverse decision.

The third section will address the common law and the U.S. system

of legal precedent. Those from common-law jurisdictions reading

this text will notice some interesting distinctions unique to the United

States. Finally, the last section will review legal authority and how a

practitioner determines the best cases, statutes, and other materials

to use in his or her brief, memo, or letter.

8CHAPTER 2

Overview of the U.S. Federal System

The federal government in the United States consists of three dif-

ferent but interrelated branches of government. These branches are

replicated in each of the 50 states.

• The Legislative Branch, established by Article I of the U.S.

Constitution, enacts statutes and funds the operation of the

government.

• The Executive Branch, established by Article II of the U.S.

Constitution, enforces laws, proposes legislation, and adopts

and applies administrative rules and regulations.

• The Judicial Branch, established by Article III of the U.S.

Constitution, produces legal precedent, interprets statutes

and the Constitution, and determines the legality of federal

regulations.

Federal Courts

Federal courts follow a simple,

three-level structure. The first-level

courts are trial courts. Just as in

state courts, these federal trial

courts hear facts and evidence as

well as legal claims. A single judge

hears the case and renders the opin-

ion, which may or may not be writ-

ten. The losing party may appeal

its case to the intermediate appeals

court, known as the circuit court,

in the same region (or circuit) in which the trial court is located.

Finally, the highest court in the United States—the U.S. Supreme

Court—can be petitioned to hear the appeal of the parties from a

circuit court case.

Judges in the United States may be either elected or appointed.

Foreign legal practitioners are often surprised to learn that some

judges are elected and express concern that they may be biased

toward one political party or another. According to at least one

empirical study of this issue, there appear to be few differences in

Interesting Fact: Judges in

early federal courts would

ride on horseback along a

“circuit” to hear cases within

a particular region. They

would often bring the attor-

neys for the cases with them.

One such attorney was the

young Abraham Lincoln.