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Thursday, July 12, 2018

How We Got Here: The History of the 2012 NDAA’s Indefinite Detention Power

How We Got Here: The History of the 2012 NDAA’s Indefinite Detention Power

With the 2017 National Defense Authorization Act (NDAA) coming up for a vote in Congress as soon as next month, now is a good time to revisit the history of the 2012 NDAA’s indefinite detention powers, and based on that history, why Congress should seriously think about repealing them.

The authority underpinning the detention provisions of the 2012 NDAA is in the claim that the laws of war can be applied to American citizens in the United States. It is crucial, therefore, to any true understanding of these provisions that we revisit the two times the laws of war were applied to American citizens in our past, and then retrace how the War on Terror has brought the laws of war to bear on American citizens again.
Early History
The first use of the laws of war against American citizens was during the U.S. Civil War. Shortly after the outset of the war, President Abraham Lincoln issued Proclamation 94[i]. This order suspended habeas corpus, the legal requirement that the government must present a reason for someone’s detention or incarceration, and also subjected to martial law “all persons discouraging volunteer enlistments, resisting militia draft or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States”[ii].
Under the authority of this proclamation, the Union military detained approximately 13,000 supposed Southern sympathizers[iii]. One of those detained, Lambdin P. Milligan, was a lawyer who was heavily critical of Lincoln’s war efforts. He was sentenced to hang by a military tribunal. His sentence was later commuted to life imprisonment by President Andrew Johnson.
A year later, the Supreme Court heard Milligan’s case in the famous Ex-Parte Milligan. In no uncertain terms, the Court slammed the Lincoln Administration for detaining Milligan under martial law, violating his privilege of habeas corpus, and applying the laws of war to a civilian:
“But it is said that the jurisdiction is complete under the ‘laws and usages of war.’
It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise (emphasis added).[iv]
When the courts are open, the Supreme Court wrote, no civilian can Constitutionally be tried under the laws of war.
President Franklin Delano Roosevelt would ignore this basic determination less than 100 years later.  On February 19th, 1942, FDR signed Executive Order 9066[v]. This order applied the laws of war “in such places and of such extent as [The Secretary of War] or the appropriate Military Commanders may determine.” Most Americans know what happened next. In less than a year, nearly 120,000 Japanese-Americans were detained in military camps based on “race prejudice, war hysteria, and a failure of political leadership.[vi]
The U.S. government later apologized for this gross violation of individual civil liberties, and authorized the payment of reparations to internment survivors, when President Ronald Reagan signed the Civil Liberties Act of 1988.
The War on Terror
After the events of September 11th, 2001, the opportunity arose again for the Executive Branch to place Americans under the laws of war. The tool, this time, was passed by Congress.
The 2001 Authorization for Use of Military Force (AUMF) was passed by Congress with the explicit purpose of enabling US forces to track down Al-Qaeda and Taliban leadership in Afghanistan. It is only two pages, and was supported by nearly every member of Congress 13 days after the September attacks.
The 2001 AUMF provided the president with sweeping new authority to go after anyone directly involved with the September 11th attacks. The wording of the operative part of the resolution is as follows:
“(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[vii]
While the authority granted to the Bush administration was sweeping in that the president alone could now determine, without a court hearing, who was involved in the attacks of September 11th, it was specifically targeted at those who had committed a crime (the 9-11 attacks). , and as a military authorization, it only applied to non-citizens outside the United States. The administration however, was unsatisfied with these Constitutional limitations, and sought for a place to expand beyond them. A few years later they would get their chance.
Yaser Esam Hamdi was born an American citizen in Louisiana in 1980, and moved to Saudi Arabia as a child. By 2001 he resided in Afghanistan. He was captured by coalition forces in Afghanistan, detained on “little more than the government’s ‘say-so’[viii]“, interrogated, and eventually sent to the military prison at Guantanamo Bay.
His father challenged his detention, and the case went up to the Supreme Court. In front of the Court, the Bush administration made two key arguments. One, that the president had the Constitutional authority under Article II to detain Hamdi without trial. And two, that even if that wasn’t true, the 2001 AUMF authorized the president to detain Hamdi without trial, regardless of his status as an American citizen.
The Supreme Court did not consider the legality of the first claim, because it approved of the second claim. In so doing, the Supreme Court did two key things:
  • It let the president’s claim that he had the plenary authority to detain any American citizen, anywhere in the world except the United States, go unchallenged.
  • It allowed the administration to remove any citizenship restrictions on the 2001 AUMF, leaving only two protections keeping any American citizen from being detained without trial, tortured, or otherwise dealt with as an enemy combatant by the Bush administration: connection to the September 11th attacks and the borders of the United States.
On the same day at the decision of the Supreme Court in Hamdi v. Rumsfeld, the Court also released its opinion in Padilla v. Rumsfeld, removing the second of those two protections.
Jose Padilla was an American citizen living in Pakistan. When he flew to the United States, he was detained in Chicago’s O’Hare airport on accusations of providing support to the Taliban. He appealed his detention without trial on the basis of his citizenship and being detained on US soil.
In that case, the Bush administration argued it could detain U.S. citizens, on American soil, without charges or a trial under the 2001 AUMF. The Court decided to focus on the habeas petition and not to consider the question of whether or not the president could order the detention of an American citizen on U.S. soil.
U.S. citizens were no longer protected from indefinite detention without trial inside the United States.
The logical extension of this law of war authority occurred on September 30th, 2011, when Anwar-Al-Awlaki, an American citizen, was extrajudicially executed via drone strike in Yemen[ix]. His son, 16-year old Abduhlrahman Al-Awlaki, was executed via drone strike two weeks later. In the memo justifying the drone strike on Anwar that was leaked to the press two years later, the 2001 Authorization for Use of Military Force is cited as the authority for the assassination[x]. The justification for killing Al-Awlaki’s son has never been released.
Now that the Bush and Obama administrations had detained US citizens on US soil without charge or trial, and executed American citizens abroad, there was just one protection left for U.S. citizens. You still had to be connected to the attacks of September 11th, 2001.
The 2012 National Defense Authorization Act, Section 1021, removed that last protection.
The National Defense Authorization Act, itself, is typically a bill that authorizes funding for the military. It has had various controversial provisions in the past, such as the creation of a program to transfer used military equipment to local police departments under the 1998 NDAA[xi], it is primarily a defense spending bill that has been passed every year for years.
The fact that it is a yearly spending bill, and authorizes funding for American troops making it a difficult bill to vote against, made it the perfect legislation in which to slip two provisions that remove the last set of protections against indefinite detention of American citizens without trial.
The 2012 NDAA started out as Senate Bill 1867. Sections 1031 and 1032 (which would later become Sections 1021 and 1022) were inserted during the initial Armed Services Committee deliberation on the bill. At the time, the provisions as introduced by Senators John McCain and Carl Levin supposedly excluded American citizens. The Obama administration threatened to veto the bill because it interfered with its “flexibility” to fight terrorism[xii].
Before the provisions passed out of the Senate, American citizens were again included in the bill. The key section, 1021 (b) 2, expanded the definition of “covered persons” under the 2001 AUMF to include, in addition to those who “ planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons“:
“2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.[xiii]
During the Senate debate on these provisions, Senator Rand Paul (R-KY) noted the ease with which any American could get caught in the 2012 NDAA’s net. Senator Paul referenced Federal Bureau of Investigation (FBI) documents that claim “missing fingers on a hand,” having “7 days worth of food supplies,” “multiple guns in the home”, and having a “strange odor” were indicators of terrorism. Senator Paul was right to point out the extremely broad and arbitrary nature of the government’s definition of terrorism and “support” of terrorism. Government documents uncovered before and since have defined the Tea Party movement, supporters of various presidential candidates, and Department of Homeland Security-funded studies that define those who are “reverent of individual liberty” and suspicious of centralized federal authority” as potential terrorists[xiv].
With the addition of one simple paragraph, the Senate removed the last vestiges of judicial process from American law, and overnight, put forth the legislation necessary to turn America into a legal battlefield in the war on terror.
Before the 2012 NDAA, the only thing preventing the President from ordering an indefinite detention of an American citizen was the requirement that the citizen be tied to a past act of terror. The new requirements include nothing of the sort. There is no requirement for court review,  judicial process, or requirement that the government present evidence that a citizen was involved in terrorism. Even if there were, the government, when challenged in open court in Hedges v. Obama, refused to define what would be considered terrorism under the 2012 NDAA.
Now, if the president, or someone he designates, merely alleges, without proof, that anyone has “substantially supported” or “directly supported” “associated forces” or commits a “belligerent act” in this “support” that person can be disposed under the laws of war.
And what does “disposed under the laws of war” mean? Yaser Hamdi, Jose Padilla, and Anwar Al-Awlaki give us some idea, but just to make sure we’re clear, the 2012 NDAA lays out what could happen to someone the president alleges is a covered person. Among other things:
  • Detention under the law of war without trial
  • Trial in front of a military commission
  • Extraordinary rendition to any foreign entity, anywhere in the world
Since enhanced interrogation and extrajudicial execution have already been used in precedent, add them to that list.
In other words, if the president merely alleges that you have “supported” “associated forces” of terrorism, you can be detained indefinitely, tortured, or even killed without ever seeing a lawyer or getting a trial. And, as District Court Judge Katherine B. Forrest put it, there is no requirement you are even aware you are supporting terrorism:
“The government was unable to define precisely what ‘direct’ or ‘substantial’ ‘support’ means…Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so. This measure has a chilling impact on first amendment rights  (emphasis added).[xv]
The 2012 NDAA passed the U.S. Senate 93-7 and the U.S. House of Representatives 283-136. It was signed into law on New Year’s Eve 2011 by President Barack Obama, from his vacation house in Hawaii, while Americans poured another round of drinks.
Post-passage of the 2012 NDAA
Reinforcing the Obama’s administration’s intent to use the 2012 NDAA on potentially innocent Americans, a few things have happened since the 2012 NDAA was signed. First, when District Judge Katherine B. Forrest asked the government if it was currently using the 2012 NDAA’s detention provisions, it refused to answer. Two, when Judge Forrest issued her permanent injunction against the detention provisions, the government applied for, and received, an emergency stay from the Appeals Court. You don’t apply for an emergency stay unless you are currently using the provisions.
Third, in a March 4th, 2013 letter to Senator Rand Paul, Attorney General Eric Holder admitted that it would be possible for the President to “authorize the military to use lethal force within the territory of the United States.[xvi]” This is the very authority the 2001 AUMF has been interpreted to grant, and the for which the 2012 NDAA removes all judicial process requirements.
We are not aware, at this point, of any use of the 2012 NDAA currently against an American citizen. But because the law allows for no charges, no trial, and indefinite detention, we will probably never know. An American citizen can be simply disappeared, or as Attorney General Eric Holder put it, killed, without any charge or a trial in America.
That’s not the America I was brought up to believe in. And I fear if we don’t do something about it, we will have lost everything that made this country exceptional in the first place.
Dan Johnson is the Founder of People Against the NDAA
[ii] Ibid.
[iv] Ex. Parte Milligan (USSC, 1866)
[viii] Hamdi v. Rumsfeld (E. Va. 2002)
[xv] Hedges v. Obama (S.D.N.Y. 2012)

Wednesday, July 11, 2018

A RICO Primer

A RICO Primer
Many readers, including defense attorneys, continue to seem confused by RICO. The usual response to a RICO charge is, “How can they do this?” The following passages, from the book Out Bad, might help clear up some confusion.
From Out Bad
RICO was the centerpiece of the Organized Crime Control Act of 1970. The law was written by a Senatorial aide named G. Robert Blakey, who is now the William and Dorothy O’Neill Professor of Law at Notre Dame. And, it is named for the fictional character Rico “Little Caesar” Bandello who was inhabited on film by Edward G. Robinson.
Robinson’s Rico character, in turn, was a parody of a notorious entrepreneur named Alphonse Gabriel “Scarface” Capone. “Every time a boy falls off a tricycle,” Capone once lamented, “every time a black cat has gray kittens, every time someone stubs a toe, every time there’s a murder or a fire or the Marines land in Nicaragua, the police and the newspapers holler ‘get Capone.’”
Capone regretted his reputation as a criminal. Starting in 1926 he tried to diversify into legitimate businesses. Eventually he discovered milk. “Honest to God, we’ve been in the wrong racket right along,” Capone exclaimed when he discovered that the profit margins were higher in milk than in whiskey. In February 1932, three months before he went to prison, Capone invested $50,000 in a legitimate business named Meadowmoor Dairies. In the 1960s the descendants of Capone liked to invest in bowling alleys because they were a good way to explain where the money came from. The upshot of that was that the main supplier of automatic pin setting machines, the AMF company, became prosperous enough to buy, and almost ruin, the Harley-Davidson company.
The original intent of the RICO statute – at least by the Congressmen who voted for it – was to protect legitimate dairies, bowling alleys and other businesses, from investment by thugs like Al Capone. That did not work because the threat posed to the nation by the Italian-American Mafia was always overblown and because as years went by the very same acts the Mafia had always been condemned for doing began to be accepted as standard business practice. The Mafia used to sell sin. The gangsters profited from gambling, usury, prostitution, liquor, drugs and theft. Now states, the nation, Indian tribes, rural counties in Nevada, credit card brands, mortgage lenders, banks in general and asset confiscating police all profit from exactly the same sins.
This may or may not be a good thing. It is certainly not something new in the American pageant. Wyatt Earp enforced the law for big banks and mining companies. Before that he was “muscle.” Before that he was a pimp. Honore de Balzac said, “Behind every great fortune there is a crime.” Crime used to be understood as a kind of cheating for personal gain. Now a crime is anything. Racketeering is anything. The point is to find an excuse to make people suffer.
RICO, as it has evolved, is not intended to punish what most people consider to be crimes, which is to say actions like murder, robbery or what Roman Polanski did to that 13-year-old girl – crimes that lawyers call malum in se. RICO is designed to punish crimes lawyers call malum prohibitum which is Latin for actions that are illegal because they are illegal – like possessing illegal intoxicants or talking on the telephone about illegal intoxicants or smoking in a public place or having a loud and embarrassingly ugly argument with your wife on a Saturday night.
RICO prosecutions virtually ignore malum in se crimes, the actions you have always thought to be a “crime,” although at least a dozen of those did occur or emerge during the Mongols investigation. The predicate crimes that RICO exploits are often trivial and are always state crimes that until 1982 would have been prosecuted in state courts. For example, after the Labor Day Murders, none of the Hells Angels who were charged were ever found guilty of the murders. They confessed to talking about the murders. They confessed to hating Mongols.
Then, almost five years later, on June 17, 1981 the law changed. Congress did not write a new law. The United States Supreme Court did. In a case called United States v Turkette, the Supreme Court changed the meaning of an existing law, called the Racketeer Influenced Corrupt Organizations law, or RICO. The decision wasn’t even close. Conservatives and liberals agreed.
Turkette opened a philosophical and legal Pandora’s Box that redefined the meaning of words like “crime” and “racket;” and redefined whatever separation or connection might once have existed or not existed between local, state and federal crimes. Today a federal prosecutor can federalize virtually any crime he wants federalized. Under federal law punching somebody in the nose can be a “predicate crime.” This evolution of federal law also created a special circumstance under which defendants can be denied a presumption of innocence.
The Turkette decision changed the meaning of “criminal enterprise” away from a legitimate bar, bowling alley or labor union that had been corrupted by “the mob.” The Scheidler decision a decade later decreed that the “criminal enterprise” no longer had to exist for the purpose of making money. After Turkette and Scheidler, a class reunion could be a criminal enterprise. A federal prosecutor only had to imagine it.
National Organization of Women, Inc. v Scheidler was a civil RICO case brought on behalf of abortion providers against a political organization called Operation Rescue. Joseph Scheidler, for whom the decision is named was one of the leaders of Operation Rescue. Members believed that first-term abortion was morally wrong and should be legally prohibited. They protested outside abortion clinics and harassed and intimidated the women who tried to enter. There was a national consensus that members of Operation Rescue were loutish, cruel and unreasonable. The National Organization of Women accused them of being a racket.
“’We cannot tolerate the use of threats and force by one group to impose its views on others,’” NOW’s lawyer. Fay Clayton explained.
A Federal District judge, dismissed the case on the grounds that RICO could only be applied to “enterprises” motivated by financial gain. The Supreme Court overruled him. A racket could then be any group who members were contemptuous of the law. It was a great victory for federal policemen and prosecutors.
Professor G. Robert Blakely, who wrote the RICO Act and gave it its ironic name, lamented that he had never meant for his law to be applied to political and fraternal groups. He said he was “concerned” that after Scheidler RICO might be used against labor unions and other fringe groups like gay rights activists. Since Scheidler, RICO has been most commonly used a basis for the prosecution of outlaw motorcycle clubs.
RICO Praxis
There are several obvious reasons for the federal prosecution of state crimes. First, RICO allows the investigation of these local crimes by vast police bureaucracies like the ATF. These bureaucracies are self perpetuating and have virtually unlimited resources. All they need to persist are crimes to investigate and RICO provides that. Secondly, RICO allows federal prosecutors a legal fiction that can be used to connect what are actually, in reality, unconnected crimes into a vast, imaginary, criminal conspiracy. Additionally, RICO prosecutors do not have to prove beyond a reasonable doubt that defendants actually committed the “predicate crimes” of which they are accused. State prosecutors do but RICO allows federal prosecutors to prove crimes by the civil standard which is a “preponderance of the evidence.” Finally, RICO provides a nice, secure, recession proof way for many lawyers, policemen, and prison guards to make a good living.
Under RICO, if Barack Obama, Henry Louis Gates and Angelina Jolie all like to attend an annual seminar together, and if three people at the seminar have committed two or more criminal predicates, like making a false statement to a federal official or shoplifting, they may be collectively and individually charged with racketeering. They could all be convicted of “the affecting interstate commerce” clause in the RICO law if they sent each other Christmas cards. And the penalty for that racketeering is twenty years in a federal prison.
Many bright and cynical people who should know better still blindly assume that what police do is investigate and solve real crimes. The opposite is true in racketeering investigations. What the ATF, particularly in biker investigations, does is find a way to tie crimes to many related individuals and then create crimes that can be used to prosecute them all. This law enforcement approach is called the “Enterprise Theory of Investigation” and it has a long and twisted history.
A sociologist named Edwin Sutherland coined the term “white collar crime” in the 1930s and wrote a book on the subject in 1949. Sutherland in essence, believed that all businessmen were criminals. With all the best of intentions, after the heartbreak of the Great Depression, Sutherland thought unethical businessmen should be treated worse than murderers. He thought they should be punished for their economic crimes so he advocated that a “person of respectability and high social status in the course of his occupation” should be presumed guilty until proven innocent. Sutherland also attacked the legal concept of mens rea, or guilty mind, which states that a person cannot be guilty of a crime unless he intends to commit a crime. Sutherland’s theories became popular in two seemingly disparate communities – academia and the FBI.
A Sutherland protégé named Donald Cressey created the “enterprise” concept that quickly became the Enterprise Theory of Investigation. Cressey was particularly not talking about bands of anti-materialistic, socially alienated bikers. He intended to oppose what he saw as social injustice. “The people of the business world are probably more criminalistic than the people of the slums,” he wrote in a book he co-authored with Sutherland. The idea of factoring wealth and privilege into the criminal justice equation was attractive to intellectuals. The federal police liked the parts that made prosecutions easier. Of course, in the manner of police bureaucracies everywhere, lest the amateurs know what the professionals are talking about, the Enterprise Theory of Investigation has become simply the ETI.
“The ETI has become the standard investigative model that the FBI employs in conducting investigations against major criminal organizations,” an FBI author explains. “Unlike traditional investigative theory, which relies on law enforcement’s ability to react to a previously committed crime, the ETI encourages a proactive attack on the structure of the criminal enterprise. Rather than viewing criminal acts as isolated crimes, the ETI attempts to show that individuals commit crimes in furtherance of the criminal enterprise itself. In other words, individuals commit criminal acts solely to benefit their criminal enterprise.”
The current idea of the criminal enterprise is very close to what Hannah Arendt meant when she wrote, “Classical totalitarianism predicts possible crimes on the basis of one’s status as an ‘objective enemy.’”
By “criminal enterprise,” the FBI author means any group any Federal Prosecutor decides to prosecute. The Catholic Church and the Boy Scouts of America have not yet been prosecuted as rackets because to do so would create a terrible public backlash. But there is no backlash when the organization is an outlaw motorcycle club. The Scheidler decision completed the legal magic trick by making the “financial motive” disappear.
In motorcycle club cases, in general and against the Mongols in particular, the government uses RICO to enforce a de facto “Bill of Attainder.” Bills, sometimes the word is “writs,” of Attainder are specifically prohibited by Article One, Clause three of the Constitution. This prohibition appears so early in the principal American law because it was one of the “rights” for which the revolutionaries fought and died. Technically, in America it is not illegal to belong to Al Qaeda, the Nazi party, the Ku Klux Klan, La Cosa Nostra, the Communist party or even a motorcycle club. In a case named Uphaus v Wyman in 1959, the Supreme Court called guilt by association “a thoroughly discredited doctrine.”
But RICO allows prosecutors to turn that ruling on its head. It is the same when mass media leads the general public to believe that motorcycle clubs, right wing militias and “cults” are criminal.
Motorcycle clubs are particularly prone to prosecution under RICO because that are so blatantly “organizations” and because their members tend to believe, as Harley-Davidson’s ad agency put it, “in bucking the system that’s built to smash individuals like bugs on a windshield.” More than tribes, more than thugs, motorcycle clubs are an American ideology. And, also for better or worse, a national consensus seems to be building that America is better for renouncing this ideology.
Under RICO, state crimes punishable by months or a year in jail can be punished like murders. RICO also allows the seizure of assets like motorcycles because, the indictments always allege, no motorcycles no motorcycle gang. The enterprise theory also allows indicia searches, which are searches for proof that someone actually belongs to a motorcycle club. In effect, these searches are house wrecking parties. They are inevitably very terrible. Doors and windows are blown open with explosives. Threats like pets are eliminated. Men are beaten and sometimes executed. Wives and children are roughed up. Much glass is broken. Family photo albums, computers and mementos are confiscated.
The nature and practice of modern policing and particularly of racketeering law may help readers understand the trivial nature of many of the charges made in the indictment against the Mongols. The fact that the Mongols are a gossipy family also worked against them because the men who infiltrated the club wrote down all of the gossip. The “preponderance of evidence” rule in RICO cases made that gossip more damning than it would ever be in an ordinary criminal case. The fact that club members often disagreed about Doc Cavazos gave undercover investigators an excuse to get members talking. And, in the end RICO meant that prosecutors didn’t have to use any of the mountains of “evidence” they had collected. They only had to threaten defendants with it. Actually, in many cases they didn’t even show defendants the “evidence.” In many cases prosecutors only alluded to the “evidence” or spread their arms wide and told public defenders the evidence was in two boxes “this big.”
Summing Up
Most of the nonsense that is written about motorcycle outlaws, that they are “international crime empires” and all of that, is based on an amalgamation of sixty years of American history and on a conflation of what most people understand to be the definition of racketeering with the technical, legal definition of racketeering. Most people understand racketeering, a term coined in the 1920s, to refer to something like “protection rackets” or corrupt labor unions, fixed horse races, loan sharking or the Countrywide Home Loan racket. But the Scheidler decision four years before had made it possible to convict almost any fringe group of racketeering.
Depending on where you draw the lines, there were at least four Mongols racketeering cases although subsequent RICO cases against the Pagans and the Outlaws resulted from the same investigation. The main case which began in one Los Angeles courtroom and eventually spread to another Los Angeles courtroom and a courtroom in Orange County, was named United States versus Cavazos and Others. A much smaller case called US versus Maestas and Others was adjudicated in Denver. The smallest racketeering case, against a lone Mongol, is called US versus Christopher Ablett and years after the Mongols bust it is still being contested in Oakland. The fourth case, a civil case over the matter of whether any cop can simply seize what he believes to be “Mongols paraphernalia” when he sees it, was called Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder, United States Attorney General.
The obvious clumsiness of even naming the main court cases hints at, but does not begin to explain, why so little was written about the Mongols after the raids in October 2008. None of the usual biker experts has written about the investigation. The prosecution has been, for all practical purposes, secret. But the case is still important enough that even people who detest the Mongols and “their ilk” should know about it because it is a bright marker on the road of flight from the old to the new and improved America.
The point of Operation Black Rain was to put every outlaw in America out bad – to seize his cut, his motorcycle and his memorabilia, to rough him up, wreck his home, scare him and tell him “don’t come around this club no more.” It was, simultaneously emotionally, financially and legally devastating for the men involved. The point of the “enforcement effort” described in this book was never to punish “criminals.” The point was to crush a set of seductive, romantic, dangerous, and maybe obsolete, ideas.


Laws of the United States

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The United States Constitution, the supreme law of the United States

The United States Code, the codification of federal statutory law

The Code of Federal Regulations, the codification of federal administrative law

The law of the United States consists of many levels[1] of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of constitutional acts of Congress, constitutional treaties ratified by Congress, constitutional regulations promulgated by the executive branch, and case law originating from the federal judiciary.
The Constitution and federal law are the supreme law of the land, thus preempting conflicting state and territorial laws in the fifty U.S. states and in the territories.[2] However, the scope of federal preemption is limited, because the scope of federal power is itself rather limited. In the unique dual-sovereign system of American federalism (actually tripartite[3] when one includes Indian reservations), states are the plenary sovereigns, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.[4] Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights.[5][6] Thus, most U.S. law (especially the actual "living law" of contract, tort, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.[7][8]
At both the federal and state levels, the law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War.[9][10] However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations.



[edit] General overview

[edit] Sources of law

In the United States, the law is derived from four sources. These four sources are constitutional law, statutory law, administrative regulations, and the common law (which includes case law).[11] The most important source of law is the United States Constitution. All other law falls under and are subordinate to that document. No law may contradict the Constitution..

[edit] Constitutionality

Where Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid.[12]
Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.[13][14]

[edit] American common law

The United States and most Commonwealth countries are heirs to the common law legal tradition of English law.[15] Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder[16] and general search warrants.[17]
As common law courts, U.S. courts have inherited the principle of stare decisis.[18] American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.[19]
The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[20] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[21] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,[21] such as the heightened duty of care traditionally imposed upon common carriers.[22]
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[23]
However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law.[24] The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.
Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap.[25] But citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people.[26] The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.[27] By 1879, one of the delegates to the California constitutional convention was already complaining: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already."[28]
Today, in the words of Stanford law professor Lawrence Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention."[29] Foreign law has never been cited as binding precedent, but merely as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.[30]

[edit] Levels of law

[edit] Federal law

Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. Nearly all statutes have been codified in the United States Code. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.
In the beginning, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the military, money, foreign affairs (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail. Since the start of the 20th century, aggressive interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and employment law, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like insurance, Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them (see, e.g., the McCarran-Ferguson Act).
Under the doctrine of Erie Railroad Co. v. Tompkins (1938), there is no general federal common law. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which in turn was enacted as part of the Constitution or after). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law,[31] has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of stare decisis).
The other major implication of the Erie doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case. When hearing claims under state law pursuant to diversity jurisdiction, federal trial courts must apply the statutory and decisional law of the state in which they sit, as if they were a court of that state,[32] even if they believe that the relevant state law is irrational or just bad public policy.[33] And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.[34]
If this was not confusing enough, state courts are not bound to follow judicial interpretations of federal law from the federal courts that sit in a state, including federal courts of appeals and district courts (that is, the intermediate appellate courts and trial courts).[35] There is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.[36]

[edit] Federal statutory enactment and codification

After the President signs a bill into law (or Congress enacts it over his veto), it is delivered to the Office of the Federal Register (OFR) of the National Archives and Records Administration (NARA) where it is assigned a law number, and prepared for publication as a slip law.[37] Public laws, but not private laws, are also given legal statutory citation by the OFR. At the end of each session of Congress, the slip laws are compiled into bound volumes called the Statutes at Large, and they are known as session laws. The Statutes at Large present a chronological arrangement of the laws in the exact order that they have been enacted.
Public laws are incorporated into the United States Code, which is a codification of all general and permanent laws of the United States. The main edition is published every six years by the Office of the Law Revision Counsel of the House of Representatives, and cumulative supplements are published annually.[38][39] The U.S. Code is arranged by subject matter, and it shows the present status of laws with amendments already incorporated in the text that have been amended on one or more occasions.

[edit] Federal regulatory promulgation and codification

Congress often enacts statutes that grant broad rulemaking authority to federal agencies. Often, Congress is simply too gridlocked to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency's technical specialists are best equipped to deal with particular fact situations as they arise. Therefore, federal agencies are authorized to promulgate regulations. Under the principle of Chevron deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.
Regulations are adopted pursuant to the Administrative Procedure Act. Regulations are first proposed and published in the Federal Register (FR or Fed. Reg.) and subject to a public comment period. Eventually, after a period for public comment and revisions based on comments received, a final version is published in the Federal Register. The regulations are codified and incorporated into the Code of Federal Regulations (CFR) which is published once a year on a rolling schedule.
Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted, but are not entitled to Chevron deference.

[edit] Formulation of federal precedent

Unlike the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts.[40] However, it is universally accepted that the Founding Fathers of the United States, by vesting "judicial power" into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified.[41] Several legal scholars have argued that the federal judicial power to decide "cases or controversies" necessarily includes the power to decide the precedential effect of those cases and controversies.[42]
The difficult question is whether federal judicial power extends to formulating binding precedent through strict adherence to the rule of stare decisis. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases (and therefore also impliedly binds all persons within the court's jurisdiction). Prior to a major change to federal court rules in 2007, about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case.[41]
As Judge Alex Kozinski has explained, binding precedent as we know it today simply did not exist at the time the Constitution was framed.[41] Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 19th century.[41] Furthermore, English judges in the eighteenth century subscribed to now-obsolete natural law theories of law, by which law was believed to have an existence independent of what individual judges said. They saw themselves as merely declaring the law which had always theoretically existed, not making it.[41] Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, like how scientists regularly reject each other's conclusions as incorrect statements of the laws of science.[41]
The contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the Judiciary Acts), and the beginning of regular verbatim publication of U.S. appellate decisions by West Publishing.[41] It gradually developed case-by-case as an extension of the judiciary's public policy of effective judicial administration (that is, in order to efficiently exercise the judicial power).[41] It is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, that in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the rule of law.[43][44]
Here is a typical exposition of that public policy in a 2008 majority opinion signed by Associate Justice Stephen Breyer:
Justice Brandeis once observed that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right.' Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting opinion). To overturn a decision settling one such matter simply because we might believe that decision is no longer 'right' would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.[45]

However, since precedents became binding, it is now sometimes possible, over time, for a line of them to drift away from the express language of any underlying statutory or constitutional texts, until such texts are severely overloaded with implied meanings not even hinted at on their face. This tendency towards so-called judicial lawmaking has been particularly obvious in federal substantive due process decisions. Due to obvious tension with the reservation of legislative power to Congress in Article One of the United States Constitution, it is often subject to harsh criticism as "antidemocratic" from originalists such as Associate Justice Antonin Scalia, as in this 2000 dissenting opinion:
In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today’s decision does not pretend that it is–and yet still asserts the right to impose it against the will of the people’s representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision–especially a celebrated decision–that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people.[46]

[edit] State law

Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of California

The Restatement (Second) of Torts, a highly influential restatement of United States tort law
The fifty American states are separate sovereigns with their own state constitutions, state governments, and state courts (including state supreme courts).[47] They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari.[48]
Most cases are litigated in state courts and involve claims and defenses under state laws. Each year, only about 280,000 civil and criminal cases are heard in federal courts, as opposed to 27.5 million civil and criminal cases in state courts (these numbers exclude 858,000 federal bankruptcy cases, and in state courts, 4.5 million domestic, 1.7 million juvenile, and 55 million traffic cases).[49]
The law of most of the states is based on the common law of England; the notable exception is Louisiana, whose civil law is largely based upon French and Spanish law. The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law; as a result, the laws of any given state invariably differ from the laws of its sister states.
All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances.
All states have codified some or all of their statutory law into legal codes. Codification was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field.[50] New York's codes are known as "Laws." California and Texas simply call them "Codes." Other states use terms such as "Revised Statutes" or "Compiled Statutes" for their compilations. California, New York, and Texas have separate subject-specific codes, while all other states and the federal government use a single code divided into numbered titles.
In some states, codification is often treated as a mere restatement of the common law, to the extent that the subject matter of the particular statute at issue was covered by some judge-made principle at common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature.[51] In other states, there is a tradition of strict adherence to the plain text of the codes.
The advantage of codification is that once the state legislature becomes accustomed to writing new laws as amendments to an existing code, the code will usually reflect democratic sentiment as to what the current law is (though the entire state of the law must always be ascertained by reviewing case law to determine how judges have interpreted a particular codified statute).
In contrast, in jurisdictions with uncodified statutes, like the United Kingdom, determining what the law is can be a more difficult process. One has to trace back to the earliest relevant Act of Parliament, and then identify all later Acts which amended the earlier Act, or which directly overrode it. For example, when the UK decided to create a Supreme Court of the United Kingdom, lawmakers had to identify every single Act referring to the House of Lords that was still good law, and then amend all of those laws to refer to the Supreme Court.[52]

[edit] Attempts at "uniform" laws

Efforts by various organizations to create "uniform" state laws have been only partially successful. The two leading organizations are the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The most successful and influential uniform laws are the Uniform Commercial Code (a joint ALI-NCCUSL project) and the Model Penal Code (from ALI).
Apart from model codes, the American Law Institute has also created Restatements of the Law which are widely used by lawyers and judges to simplify the task of summarizing the current status of the common law. Instead of listing long, tedious citations of old cases that may not fit very well together (in order to invoke the long-established principles supposedly contained in those cases), or citing a treatise which may reflect the view of only one or two authors, they can simply cite a Restatement section (which is supposed to reflect the consensus of the American legal community) to refer to a particular common law principle.

[edit] Local law

Law affects every aspect of American life, including parking lots. Note the citations to statutes on the sign.
States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.[53]
It is common for residents of major U.S. metropolitan areas to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments).[54] Thus, at any given time, the average American citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.

[edit] Types of law

[edit] Procedural law

Traditionally, lawyers distinguish between procedural law (which controls the procedure followed by courts and parties to legal cases) and substantive law (which is what most people think of as law). In turn, procedural law is divided into criminal procedure and civil procedure.

[edit] Criminal procedure

The law of criminal procedure in the United States consists of a massive overlay of federal constitutional case law interwoven with the federal and state statutes that actually provide the foundation for the creation and operation of law enforcement agencies and prison systems as well as the proceedings in criminal trials. Due to the perennial inability of legislatures in the U.S. to enact statutes that would actually force law enforcement officers to respect the constitutional rights of criminal suspects and convicts, the federal judiciary gradually developed the exclusionary rule as a method to enforce such rights. In turn, the exclusionary rule spawned a family of judge-made remedies for the abuse of law enforcement powers, of which the most famous is the Miranda warning. The writ of habeas corpus is often used by suspects and convicts to challenge their detention, while the Civil Rights Act of 1871 and Bivens actions are used by suspects to recover tort damages for police brutality.

[edit] Civil procedure

The law of civil procedure governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law pleading was replaced by code pleading in 24 states after New York enacted the Field Code in 1850, and code pleading in turn was subsequently replaced again in most states by modern notice pleading during the 20th century. The old English division between common law and equity courts was abolished in the federal courts by the adoption of the Federal Rules of Civil Procedure in 1938; it has also been independently abolished by legislative acts in nearly all states. The Delaware Court of Chancery is the most prominent of the small number of remaining equity courts.
35 states have adopted rules of civil procedure closely modeled after the FRCP (including rule numbers). However, in doing so, they had to make some modifications to account for the fact that state courts have broad general jurisdiction while federal courts have relatively limited jurisdiction.
New York, Illinois, and California are the most significant states that have not adopted the FRCP. Furthermore, both states continue to maintain their civil procedure laws in the form of codified statutes enacted by the state legislature, as opposed to court rules promulgated by the state supreme court, on the ground that the latter are undemocratic. But certain key portions of their civil procedure laws have been modified by their legislatures to bring them closer to federal civil procedure.[55]
Generally, American civil procedure has several notable features, including extensive pretrial discovery, heavy reliance on live testimony obtained at deposition or elicited in front of a jury, and aggressive pretrial "law and motion" practice designed to result in a pretrial disposition (that is, summary judgment) or a settlement. U.S. courts pioneered the concept of the opt-out class action, by which the burden falls on class members to notify the court that they do not wish to be bound by the judgment, as opposed to opt-in class actions, where class members must join into the class. Another unique feature is the so-called American Rule under which parties generally bear their own attorneys' fees (as opposed to the English Rule of "loser pays"), though American legislators and courts have carved out numerous exceptions.

[edit] Substantive law

Substantive law comprises the actual "substance" of the law; that is, the law that defines legally enforceable rights and duties, and what wrongful acts amount to violations of those rights and duties. Because substantive law by definition is enormous, the following summary briefly covers only a few highlights of each of the major components of American substantive law.

[edit] Criminal law

Criminal law involves the prosecution by the state of wrongful acts which are considered to be so serious that they are a breach of the sovereign's peace (and cannot be deterred or remedied by mere lawsuits between private parties). Generally, crimes can result in incarceration, but torts (see below) cannot. The majority of the crimes committed in the United States are prosecuted and punished at the state level. Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud.
All states have somewhat similar laws in regard to "higher crimes" (or felonies), such as murder and rape, although penalties for these crimes may vary from state to state. Capital punishment is permitted in some states but not others. Three strikes laws in certain states impose harsh penalties on repeat offenders.
Some states distinguish between two levels: felonies and misdemeanors (minor crimes). Generally, most felony convictions result in lengthy prison sentences as well as subsequent probation, large fines, and orders to pay restitution directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, infractions. These may result in fines and sometimes the loss of one's driver's license, but no jail time.
For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious felony.

[edit] Contract law

Contract law covers obligations established by agreement (express or implied) between private parties. Generally, contract law in transactions involving the sale of goods has become highly standardized nationwide as a result of the widespread adoption of the Uniform Commercial Code. However, there is still significant diversity in the interpretation of other kinds of contracts, depending upon the extent to which a given state has codified its common law of contracts or adopted portions of the Restatement (Second) of Contracts.
Parties are permitted to agree to arbitrate disputes arising from their contracts. Under the Federal Arbitration Act (which has been interpreted to cover all contracts arising under federal or state law), arbitration clauses are generally enforceable unless the party resisting arbitration can show unconscionability or fraud or something else which undermines the entire contract.

[edit] Tort law

Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract.
Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and of course, partially overlaps with wrongs also punishable by criminal law. Although the American Law Institute has attempted to standardize tort law through the development of several versions of the Restatement of Torts, many states have chosen to adopt only certain sections of the Restatements and to reject others. Thus, because of its immense size and diversity, American tort law cannot be easily summarized.
For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence of physical injury to the plaintiff, but most do not. For any particular tort, states differ on the causes of action, types and scope of remedies, statutes of limitations, and the amount of specificity with which one must plead the cause. With practically any aspect of tort law, there is a "majority rule" adhered to by most states, and one or more "minority rules."
Notably, the most broadly influential innovation of 20th century American tort law was the rule of strict liability for defective products, which originated with judicial glosses on the law of warranty. In 1963, Roger J. Traynor of the Supreme Court of California threw away legal fictions based on warranties and imposed strict liability for defective products as a matter of public policy in the landmark case of Greenman v. Yuba Power Products.[56] The American Law Institute subsequently adopted a slightly different version of the Greenman rule in Section 402A of the Restatement (Second) of Torts, which was published in 1964 and was very influential throughout the United States.[57] Outside the U.S., the rule was adopted by the European Economic Community in the Product Liability Directive of July 1985,[58] by Australia in July 1992,[59] and by Japan in June 1994.[60]
By the 1990s, the avalanche of American cases resulting from Greenman and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the Restatement (Third) of Torts: Products Liability.[61]

[edit] Exceptions

Much of Louisiana law is derived from French and Spanish civil law, which stems from its history as a colony of both France and Spain.[62] Puerto Rico, a former Spanish colony, is also a civil law jurisdiction of the United States.[63] However, the criminal law of both jurisdictions has been necessarily modified by common law influences and the supremacy of the federal Constitution.[64][65]
Furthermore, Puerto Rico is also unique in that it is the only U.S. jurisdiction in which the everyday working language of court proceedings, statutes, regulations, and case law is Spanish.[66] All states, the federal government, and most territories use American English as their working language.[67] Some states, such as California, do provide certain court forms in other languages (Chinese, Korean, Spanish, Vietnamese) for the convenience of immigrants and naturalized citizens.[68] But American law as developed through statutes, regulations, and case law is always in English, attorneys are expected to take and pass the bar examination in English, judges hear oral argument and give orders from the bench in English, and testimony and documents originating in other languages is translated into English before being incorporated into the official record of a case.[67]
Many states in the southwest that were originally Mexican territory have inherited several unique features from the civil law that governed when they were part of Mexico. These states include Arizona, California, Nevada, New Mexico, and Texas. For example, these states all have a community property system for the property of married persons (Idaho, Washington, and Wisconsin have also adopted community property systems, but they did not inherit them from a previous civil law system that governed the state).[69][70] Another example of civil law influence in these states can be seen in the California Civil Code, where the law of contracts is treated as part of the law of obligations (though the rules actually codified are clearly derived from the common law).[citation needed]
Many of the western states, including California, Colorado, New Mexico, and Wyoming use a system of allocating water rights known as the prior appropriation doctrine, which is derived from Spanish civil law.[71] It should be noted that each state has modified the doctrine to suit its own internal conditions and needs.[72]

[edit] See also

[edit] Lists

[edit] References

  1. ^ See Stephen Elias and Susan Levinkind, Legal Research: How to Find & Understand The Law, 14th ed. (Berkeley: Nolo, 2005), 22.
  2. ^ William Burnham, Introduction to the Law and Legal System of the United States, 4th ed. (St. Paul, MN: Thomson West, 2006), 41.
  3. ^ Tonya Kowalski, "The Forgotten Sovereigns," 36 FSU Law. R. 765 (2009).
  4. ^ United States v. Lopez, 514 U.S. 549 (1995).
  5. ^ Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
  6. ^ California v. Ramos, 463 U.S. 992 (1983).
  7. ^ Lawrence M. Friedman, A History of American Law, 3rd ed. (New York: Touchstone, 2005), 307 and 504-505.
  8. ^ Graham Hughes, "Common Law Systems," in Fundamentals of American Law, ed. Alan B. Morisson, 9-26 (New York: Oxford University Press, 1996), 33.
  9. ^ Hughes, 12.
  10. ^ Friedman, 4-5. Professor Friedman points out that English law itself was never completely uniform across England prior to the 20th century. The result was that the colonists recreated the legal diversity of English law in the American colonies.
  11. ^ Paul Bergman and Sara J. Berman-Barrett, Represent Yourself In Court: How to Prepare & Try a Winning Case, 6th ed. (Berkeley: Nolo, 2008), 481.
  12. ^ See Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803).
  13. ^ See Casarotto v. Lombardi, 886 P.2d 931, 940 (Mont. 1994) (Trieweiler, J., specially concurring), vacated and remanded by 515 U.S. 1129 (1995), reaff'd and reinstated by 901 P.2d 596 (Mont. 1995), rev'd sub nom. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996).
  14. ^ Cavazos v. Smith, 565 U.S. __, __ (2011) (per curiam).
  15. ^ Friedman, 67-69.
  16. ^ U.S. Const., Art. 1, §§ 9 and 10.
  17. ^ U.S. Const., Amend. IV.
  18. ^ John C. Dernbach and Cathleen S. Wharton, A Practical Guide to Legal Writing & Legal Method, 2nd ed. (Buffalo: William S. Hein Publishing, 1994), 34-36.
  19. ^ Antonin Scalia and Amy Gutmann, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1998), 3-13.
  20. ^ Miles O. Price & Harry Bitner, Effective Legal Research: A Practical Manual of Law Books and Their Use, 3rd ed. (Buffalo: William Hein & Co., 1969), 272.
  21. ^ a b Ibid.
  22. ^ See, e.g., Gomez v. Superior Court (Walt Disney Co.), 35 Cal. 4th 1125 (2005) (citing Lovett v. Hobbs, 89 Eng. Rep. 836 (1680)). The Gomez court relied on a line of cases originating with Lovett in order to hold that Disneyland was a common carrier.
  23. ^ See, e.g., Phillippe v. Shapell Industries, 43 Cal. 3d 1247 (1987) (citing original Statute of Frauds from England) and Meija v. Reed, 31 Cal. 4th 657 (2003) (citing Statute of 13 Elizabeth).
  24. ^ Burnham, 43-44.
  25. ^ Friedman, 69.
  26. ^ Elizabeth Gaspar Brown, "Frontier Justice: Wayne County 1796-1836," in Essays in Nineteenth-Century American Legal History, ed. Wythe Holt, 676-703 (Westport, CT: Greenwood Press, 1976): 686. Between 1808 and 1828, the briefs filed in court cases in the Territory of Michigan changed from a complete reliance on English sources of law to an increasing reliance on citations to American sources.
  27. ^ Friedman, 475.
  28. ^ People v. Kelly, 40 Cal. 4th 106 (2006).
  29. ^ Lawrence M. Friedman, American Law in the Twentieth Century (New Haven: Yale University Press, 2004), 575.
  30. ^ See Lawrence v. Texas, 538 U.S. 558 (2003), in which the majority cited a European court decision, Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), as indicative of the shared values of Western civilization.
  31. ^ Romero v. International Terminal Operating Co., 358 U.S. 354, 360–361 (1959).
  32. ^ Hughes, 13-14.
  33. ^ Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564 (9th Cir. 1988). In this opinion, federal judge Alex Kozinski attacked a 1968 Supreme Court of California opinion in exhausting detail before conceding that under Erie, he had no choice but to apply the state court's reasoning despite his strong dislike of it.
  34. ^ Choate v. County of Orange, 86 Cal. App. 4th 312, 327-28 (2000).
  35. ^ Yee v. City of Escondido, 224 Cal. App. 3d 1349, 1351 (1990).
  36. ^ Elliot v. Albright, 209 Cal. App. 3d 1028, 1034 (1989).
  37. ^ Public and Private Laws: About. United States Government Printing Office. 
  38. ^ United States Code
  39. ^
  40. ^ Hughes, 13.
  41. ^ a b c d e f g h Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).
  42. ^ Michael J. Gerhardt, The Power of Precedent (New York: Oxford University Press, 2008), 59.
  43. ^ Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law (New York: Oxford University Press, 2008), 70-71.
  44. ^ Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595-602 (1987).
  45. ^ John R. Sand Gravel Co. v. United States, 552 U.S. 130, 139 (2008).
  46. ^ Dickerson v. United States, 530 U.S. 428 (2000) (Scalia, J., dissenting).
  47. ^ U.S. Const., Amend. X.
  48. ^ See 28 U.S.C. § 1257.
  49. ^ Alan B. Morisson, "Courts," in Fundamentals of American Law, ed. Alan B. Morisson, 57-60 (New York: Oxford University Press, 1996), 60.
  50. ^ Burnham, 53.
  51. ^ California is the supreme example of this position. Li v. Yellow Cab Co., 13 Cal. 3d 804 (1975).
  52. ^ See Schedule 9, Constitutional Reform Act 2005, from the UK Office of Public Sector Information.
  53. ^ See, e.g., Burton v. Municipal Court, 68 Cal. 2d 684 (1968) (invalidating Los Angeles city ordinance regulating motion picture theatres as an unconstitutional violation of freedom of speech as protected by the First Amendment to the United States Constitution).
  54. ^ Osborne M. Reynolds, Jr., Local Government Law, 3rd ed. (St. Paul: West, 2009), 33.
  55. ^ For example, Section 437c of the California Code of Civil Procedure was amended by the state legislature several times in the 1990s to bring California's summary judgment standard in line with Rule 56 of the Federal Rules of Civil Procedure. See Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 849 (2001).
  56. ^ Mark A. Kinzie & Christine F. Hart, Product Liability Litigation (Clifton Park, NY: Thomson Delmar Learning, 2002), 100-101. See also Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963).
  57. ^ Kinzie & Hart, 101.
  58. ^ Norbert Reich, Understanding EU Law: Objectives, Principles and Methods of Community Law (Antwerp: Intersentia, 2005), 337.
  59. ^ Ellen E. Beerworth, "Australia," 51-74, in International Product Liability, vol. 1, ed. Christian Campbell (Salzburg: Yorkhill Law Publishing, 2006), 52.
  60. ^ Patricia L. Maclachlan, Consumer Politics in Postwar Japan (New York: Columbia University Press, 2002), 226.
  61. ^ "ALI Restatement of the Law Third, Torts: Products Liability". Retrieved 2009-12-26. 
  62. ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. Retrieved 2011-12-09. 
  63. ^ "Territorial Courts in the Federal Judiciary". Administrative Office of the U.S. Courts. 28 February 2011. Retrieved 9 December 2011. 
  64. ^ U.S. Const. art. IV, § 3, cl. 2 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ...").
  65. ^ Downes v. Bidwell, 182 U.S. 244, 261 (1901), commenting on an earlier Supreme Court decision, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Rasmussen v. United States, 197 U.S. 516, 529–530, 536 (1905)(concurring opinions of Justices Harlan and Brown), that once the Constitution has been extended to an area, its coverage is irrevocable; Boumediene v. Bush – That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.
  66. ^ Muñiz-Argüelles, Luis (1989). "The Status of Languages in Puerto Rico". Langue et droit [Language and Law] (Montreal: Wilson & Lafleur). Retrieved 9 December 2011. 
  67. ^ a b Haviland, John B. (December 2003). "Ideologies of Language: Some Reflections on Language and U.S. Law". American Anthropologist. New Series 105 (4, Special Issue: Language Politics and Practices): 764–774. 
  68. ^ [ "The California Rules of Court, Appendix A: Judicial Council Legal Forms List"]. Judicial Council of California / Administrative Office of the Courts. Retrieved 9 December 2011. 
  69. ^ The half-borrowed term ganancial (from Sp sociedad de gananciales) was used in some early U.S. community property opinions, such as Stramler v. Coe, 15 Tex. 211, 215 (1855).
  70. ^ Jean A. Stuntz, Hers, His, and Theirs: Community Property Law in Spain and Early Texas, (Lubbock, Texas: Texas Tech University Press, 2005), 1-31.
  71. ^ C. Wiel, Samuel (September 1915). "What Is Beneficial Use of Water?". California Law Review (California Law Review, Inc.) 3 (6): 460–475. 
  72. ^ Castle, Anne J.. "Water Rights Law -- Prior Appropriation". Holland & Hart LLP. Retrieved 9 December 2011. 

[edit] Further reading

  • Friedman, Lawrence M. American Law (1984)
  • Hall, Kermit L. et al. eds. The Oxford Companion to American Law (2002) excerpt and text search

[edit] Legal history

  • Friedman, Lawrence M. A History of American Law (3rd ed. 2005) 640 pp
  • Friedman, Lawrence M. American Law in the Twentieth Century (2002)
  • Hall, Kermit L. The Magic Mirror: Law in American History (1989)
  • Hall, Kermit L. et al. American Legal History: Cases and Materials (2010); 752 pages
  • Horwitz, Morton J. The transformation of American law: 1780 - 1860 (1977)
  • Horwitz, Morton J. The transformation of American law, 1870-1960: the crisis of legal orthodoxy (1994)
  • Howe, Mark de Wolfe, ed. Readings in American Legal History (2001) 540pp
  • Johnson, Herbert A. American legal and constitutional history: cases and materials (2001) 733 pp
  • Rabban, David M. (2003) "The Historiography of Late Nineteenth-Century American Legal History," Theoretical Inquiries in Law 4#2 Article 5. abstract
  • Schwartz, Bernard. The Law in America. (Evolution of American legal institutions since 1790). (1974).

[edit] Colonial

  • Gerber, Scott D. "Bringing Ideas Back In--A Brief Historiography of American Colonial Law," American Journal of Legal History, April 2011, 51#2 pp 359-374
  • Hoffer, Peter. Law and people in colonial America (1998) 193pp

[edit] Lawyers

  • Abel, Richard L. American Lawyers (1991)
  • Chroust, Anton-Hermann. The Rise of the legal profession in America (2 vol 1965), to 1860
  • Drachman, Virginia G. Sisters In Law: Women Lawyers in Modern American History (2001)
  • Nizer, Louis. My Life in Court. (1978) Popular description of a lawyer's practice
  • Vile, John R. Great American lawyers: an encyclopedia (2001)
  • Vile, John R. Great American judges: an encyclopedia (2003)
  • Wortman, Marlene Stein. Women in American Law: From colonial times to the New Deal (1985)

[edit] Philosophy of law

  • Cardozo, Benjamin N., ed. An Introduction to Law. (1957). essays by eight distinguished American judges
  • Hart, H.L.A. The Concept of Law. (1961). Classic text on "what is law?"
  • Llewellyn, Karl N. "The Bramble Bush," in Karl N. Llewellyn on Legal Realism. (1986). (Classic introductory text on the nature of law).
  • Pound, Roscoe. Social Control Through Law. (Nature of law and its role in society). (1942)

[edit] External links