Michael J. Gregorek, Esq.: the American Legal System

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Judge Michael J. Gregorek

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American Legal System

Sources of laws. When the US was just a group of colonies, the common law was in effect, our first source of law. The common law has the following dynamic: a judge hears a case; both sides argue what rules should apply; the judge "discovers" the rule, i.e., the judge recognizes the business custom or the standard of behavior that is widely accepted by the community; and finally the judge applies that rule. The concept of stare decisis is applied by the next judge encountering the same situation, which means the next judge follows the first judge's decision, i.e. precedent. Eventually, judges just read each others' decisions applying the consensus--precedent. Sometimes judges overrule a common law rule for a new one that is newly discovered. Sometimes judges distinguish a case from the other cases to create a new rule. Sometimes judges simply modify the old rule to accommodate the unforeseen. In this way, the rules have changed with changing times.

Second, in England, if a person was unhappy with the remedies of the common law, the person appealed to the King. The King's court applied the law of equity. Equity differs from the common law because whereas the common law essentially solves problems with money, equity can enjoin behavior. Equity gives a complainant a way to stop someone from doing damage; the common law essentially just compensates for the damages done. In the common law a yes or no judgment is rendered by the judge to a request for money; whereas in equity a judicial decree (note the kingly sounding word "decree") is fashioned to fit the situation. Juries are used in the common law; no jury is used in equity. Precedent is used by both the common law and equity to decide how to resolve a case, but precedent plays more of a role in deciding a case under common law than equity. Equity, after all, was developed to fix situations that the common law did not answer well, so the judge has more freedom in equity from reversal on appeal for veering from precedent. In the early days of the U.S., the King was not a popular fellow, so the law of equity did not come over the Atlantic with the common law. Eventually, however, the law of equity was imported for the same reasons it was begotten in England. In England and N.Y.S., the law of equity was dispensed in a separate court referred to as the Court of Chancery. Eventually the law of equity was merged into the same courts that in the U.S. were applying common law.

Third, unlike England, the U.S. started things off early on with a Constitution. Constitutional law is the supreme law of the land. It also begets the fourth source of laws, statutes. A legislature creates laws, called statutes, to govern whatever the constitution permits. Sometimes the legislature needs help governing an area, such as aviation or commerce, so the legislature creates an agency with the power to create regulations, the fifth source of law, administrative law. The Court System. There are state courts and federal courts, which operate side by side as equals. The court system for both is like a three layered wedding cake. At the bottom, there are many trial courts that (a) hear witnesses to the facts and arguments about the law, (b) make findings of fact and conclusions of law, and (c) then put it all together for the decisions. A trial court has one judge per case to do all that work. Moving up to the second layer, there are the appellate courts at which level the law is argued. A case may be affirmed (the decision below is sustained) or reversed (the decision below is undone). The facts are locked in place by the trial court; the appellate court does not typically accept new evidence, however, the appellate court may, under some circumstances, remand a case to the trial court for further proceedings. There are fewer appellate courts than trial courts, but appellate courts are often presided over by three or more judges at a time working together on each appeal. At the top, the third level, is the final appeal, such as the U.S. Supreme Court, where appeals are often heard to clarify the law for the trial and appeals courts below. A state’s highest court has the right to decide the law of its state without interference from the U.S. Supreme Court. But when the controversy involves federal law or the U.S. Constitution, then the U.S. Supreme Court will have the final word. There is only one court that is the highest in each state and for the U.S.; and those highest courts usually have more than three judges working together on each appeal, e.g., currently nine work together on the U.S. Supreme Court.

In New York, the state courts are referred to in a confusing way: the trial courts are called the Supreme Court; the general appeals courts are called the Appellate Divisions of the Supreme Court; and the court of last resort, the highest, is called the Court of Appeals.

There are many exceptions and variations to this simplified view of the court system, but understanding this much will help you recognize most court systems.

To read a bias opinion describing the British system from which the U.S. system owes its start, click here. The link starts with a description of the inquiry system, an alternative to the U.S. and British adversary system. Anatomy of a Decision. The general legal writing format is to arrange the following elements in the following order: issue, rule, analysis and conclusion. The paradigm is known as IRAC. When lawyers write legal briefs, the same format is employed. In a decision, the court makes findings of fact, conclusions of law and then combines these two to make a "holding" which states the decision of the court in a way that it can be applied as precedent. When reading a decision it is helpful to isolate the findings of fact (which can be found rolled into the framing of the issue and rifled in the analysis), the conclusions of law (the rules), and finally the holding (the conclusion).

Appellate decisions often include concurrences and dissents, in that order, after the main opinion. The main opinion is written by the majority, is "law of the case" (i.e., governs that case) and has precedential value (i.e., will govern future cases). The concurrence or dissent are the opinions of the judges who did not agree with the majority opinion. In the case of a concurrence, the judge or judges are expressing why they are voting with the majority but for their own reasons. In the case of a dissent, the judge or judges are expressing why they are not voting with the majority. Neither a concurrence nor a dissent are law, but they are helpful in understanding competing views amongst the judiciary. Knowing how different judges view an issue may signal future changes in the law depending on future appointments to the bench. (E.g., add another judge with the same view as a dissenter and perhaps the balance in the court shifts to make the dissent the majority view and therefore the view that may become law.)

Within an opinion, there is the holding of the case, but there may also be dicta. The holding, again, is the legal principle to be drawn from the decision. Dicta is an opinion by a judge that does not embody the resolution; it is an expression that goes beyond the facts of the case; it is a nonbinding comment. Dicta, however, could someday become the law if subsequent decisions adopt the dicta as sound advice and make it the holding in a case.

© 2000 Judge Michael J. Gregorek

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American Legal System
Sources of laws. When the US was just a group of colonies, the common law was in effect, our first source of law. The common law has the following dynamic: a judge hears a case; both sides argue what rules should apply; the judge "discovers" the rule, i.e., the judge recognizes the business custom or the standard of behavior that is widely accepted by the community; and finally the judge applies that rule. The concept of stare decisis is applied by the next judge encountering the same situation, which means the next judge follows the first judge's decision, i.e. precedent. Eventually, judges just read each others' decisions applying the consensus--precedent. Sometimes judges overrule a common law rule for a new one that is newly discovered. Sometimes judges distinguish a case from the other cases to create a new rule. Sometimes judges simply modify the old rule to accommodate the unforeseen. In this way, the rules have changed with changing times. Second, in England, if a person was unhappy with the remedies of the common law, the person appealed to the King. The King's court applied the law of equity. Equity differs from the common law because whereas the common law essentially solves problems with money, equity can enjoin behavior. Equity gives a complainant a way to stop someone from doing damage; the common law essentially just compensates for the damages done. In the common law a yes or no judgment is rendered by the judge to a request for money; whereas in equity a judicial decree (note the kingly sounding word "decree") is fashioned to fit the situation. Juries are used in the common law; no jury is used in equity. Precedent is used by both the common law and equity to decide how to resolve a case, but precedent plays more of a role in deciding a case under common law than equity. Equity, after all, was developed to fix situations that the common law did not answer well, so the judge has more freedom in equity from reversal on appeal for veering from precedent. In the early days of the U.S., the King was not a popular fellow, so the law of equity did not come over the Atlantic with the common law. Eventually, however, the law of equity was imported for the same reasons it was begotten in England. In England and N.Y.S., the law of equity was dispensed in a separate court referred to as the Court of Chancery. Eventually the law of equity was merged into the same courts that in the U.S. were applying common law. Third, unlike England, the U.S. started things off early on with a Constitution. Constitutional law is the supreme law of the land. It also begets the fourth source of laws, statutes. A legislature creates laws, called statutes, to govern whatever the constitution permits. Sometimes the legislature needs help governing an area, such as aviation or commerce, so the legislature creates an agency with the power to create regulations, the fifth source of law, administrative law.	The Court System. There are state courts and federal courts, which operate side by side as equals. The court system for both is like a three layered wedding cake. At the bottom, there are many trial courts that (a) hear witnesses to the facts and arguments about the law, (b) make findings of fact and conclusions of law, and (c) then put it all together for the decisions. A trial court has one judge per case to do all that work. Moving up to the second layer, there are the appellate courts at which level the law is argued. A case may be affirmed (the decision below is sustained) or reversed (the decision below is undone). The facts are locked in place by the trial court; the appellate court does not typically accept new evidence, however, the appellate court may, under some circumstances, remand a case to the trial court for further proceedings. There are fewer appellate courts than trial courts, but appellate courts are often presided over by three or more judges at a time working together on each appeal. At the top, the third level, is the final appeal, such as the U.S. Supreme Court, where appeals are often heard to clarify the law for the trial and appeals courts below. A state’s highest court has the right to decide the law of its state without interference from the U.S. Supreme Court. But when the controversy involves federal law or the U.S. Constitution, then the U.S. Supreme Court will have the final word. There is only one court that is the highest in each state and for the U.S.; and those highest courts usually have more than three judges working together on each appeal, e.g., currently nine work together on the U.S. Supreme Court. In New York, the state courts are referred to in a confusing way: the trial courts are called the Supreme Court; the general appeals courts are called the Appellate Divisions of the Supreme Court; and the court of last resort, the highest, is called the Court of Appeals. There are many exceptions and variations to this simplified view of the court system, but understanding this much will help you recognize most court systems. To read a bias opinion describing the British system from which the U.S. system owes its start, click here. The link starts with a description of the inquiry system, an alternative to the U.S. and British adversary system.	Anatomy of a Decision. The general legal writing format is to arrange the following elements in the following order: issue, rule, analysis and conclusion. The paradigm is known as IRAC. When lawyers write legal briefs, the same format is employed. In a decision, the court makes findings of fact, conclusions of law and then combines these two to make a "holding" which states the decision of the court in a way that it can be applied as precedent. When reading a decision it is helpful to isolate the findings of fact (which can be found rolled into the framing of the issue and rifled in the analysis), the conclusions of law (the rules), and finally the holding (the conclusion). Appellate decisions often include concurrences and dissents, in that order, after the main opinion. The main opinion is written by the majority, is "law of the case" (i.e., governs that case) and has precedential value (i.e., will govern future cases). The concurrence or dissent are the opinions of the judges who did not agree with the majority opinion. In the case of a concurrence, the judge or judges are expressing why they are voting with the majority but for their own reasons. In the case of a dissent, the judge or judges are expressing why they are not voting with the majority. Neither a concurrence nor a dissent are law, but they are helpful in understanding competing views amongst the judiciary. Knowing how different judges view an issue may signal future changes in the law depending on future appointments to the bench. (E.g., add another judge with the same view as a dissenter and perhaps the balance in the court shifts to make the dissent the majority view and therefore the view that may become law.) Within an opinion, there is the holding of the case, but there may also be dicta. The holding, again, is the legal principle to be drawn from the decision. Dicta is an opinion by a judge that does not embody the resolution; it is an expression that goes beyond the facts of the case; it is a nonbinding comment. Dicta, however, could someday become the law if subsequent decisions adopt the dicta as sound advice and make it the holding in a case.