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Friday, November 30, 2018

Nevada Knife Laws

Overview of NV Knife Law | Nevada Knife Case Law
Nevada Revised Statutes | City and County Ordinances

Overview of Nevada Knife Laws

State Law

Generally speaking, Nevada law is silent on the carrying of knives, with certain specific exceptions which we will address later on. This means that unless explicitly prohibited by NRS or by city or county ordinance, it is legal to carry a knife in Nevada. Since there is no state preemption law for edged weapons like there is for firearms, municipalities and counties may make any law they wish with respect to the carry of knives. The Nevada Revised Statutes do not specify any maximum allowable blade length, or any restrictions as far as open or concealed knife carry. NRS 202.350 prohibits the possession of any switchblade or belt buckle knife, and makes it illegal to carry a concealed dirk, dagger, or machete. Additionally, NRS 202.320, which prohibits the drawing of a deadly weapon in a threatening manner in any situation where a person's actions do not constitute legitimate and necessary self-defense, applies to knives as well as to firearms.

Note that depending on circumstances, it is possible that carrying a concealed knife that does not fall into any prohibited category might still result in an arrest for carrying a concealed weapon, if it appears that the intent exists to use that knife primarily as a weapon rather than a tool. Remember also that a Nevada concealed firearms permit (CCW) applies to firearms only, and does not allow the carry of any concealed knife that would normally be illegal to carry under state or local law.
Nevada state law (NRS 202.265) makes it illegal to carry certain "dangerous weapons" on property of, or in a vehicle belonging to, a school or child care facility; this includes campuses of the University of Nevada system and the College of Southern Nevada. Prohibited items under this statute include dirks, daggers, switchblades (as defined below), and trefoils (aka throwing stars). While no other prohibited places are listed in Nevada state law, as a general rule, no knives may be taken into any facility with a metal detector at the entrance, including court facilities.

Certain of the terms used in the Nevada Revised Statutes discussed here are defined in very specific ways, and an understanding of these definitions is essential to properly understanding what the laws do and do not permit. Interestingly, the words "dirk" and "dagger," although they appear in multiple statutes as a class of prohibited weapon, are not explicitly defined anywhere within the NRS itself. The definitions of these words as a matter of Nevada law derive from a number of Nevada Supreme Court decisions (see below), in which the Court noted that a dagger is traditionally "a short weapon used for thrusting and stabbing and that stabbing is using a pointed weapon to wound or kill" (Huebner v. State, 1987). A dirk is noted in the same decision as functionally being nothing more than a type of dagger. The court also noted in other decisions that any knife cannot automatically be classified as a dirk or dagger at the whim of an arresting officer or a judge, and that some "relevant factors" to consider when making such a determination include whether the knife has handguards and/or a blade that locks in place. In short, the Nevada courts currently accept the legal definition of a dirk or dagger as a pointed knife with a fixed or locking blade, designed primarily or solely as a stabbing weapon. Any double-edged knife with a fixed blade is generally considered to be a dagger.
A switchblade knife is defined by NRS 202.350 as "a spring-blade knife, snap-blade knife or any other knife having the appearance of a pocketknife, any blade of which is 2 or more inches long and which can be released automatically by a flick of a button, pressure on the handle or other mechanical device, or is released by any type of mechanism. The term does not include a knife which has a blade that is held in place by a spring if the blade does not have any type of automatic release." An automatic-opening knife with a blade less than two inches in length is not considered to be a "switchblade" as a matter of Nevada law, and is thus legal to possess and carry.
The blade of a knife is generally considered to be "that portion which is customarily sharpened from the tip of the knife to the tang, or the unsharpened extension of the blade which forms the hinge connecting the blade to the handle," as per the Nevada Supreme Court's decision in Bradvica v. State, 1988 (see below). In other words, only that part of a knife which is designed to be sharpened is considered to be the "blade" for purposes of determining length.
A concealed weapon is defined by NRS 202.350 as any weapon described within that statute, which is carried upon one's person "in such a manner as not to be discernible by ordinary observation." By this definition, if a weapon, or part of it, cannot be seen without first moving clothing out of the way, it is considered to be concealed. The Nevada Supreme Court, as part of its ruling in Huebner v. State (1987), found that a weapon which is visible or partially visible, but appears to be something else (for example, a knife contained within an item such as a pen or hairbrush), is still a concealed weapon even though it is not covered or hidden from view.
NRS 193.165 defines a deadly weapon as "(a) Any instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause substantial bodily harm or death; (b) Any weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm or death; or (c) A dangerous or deadly weapon specifically described in NRS 202.255, NRS 202.265, NRS 202.290, NRS 202.320 or NRS 202.350." Additionally, the Nevada Supreme Court, in Zgombic v. State (1990), ruled that for any instrument not so defined by statute to be considered a "deadly weapon," it must satisfy what the Court refers to as the "inherently dangerous" test. A weapon is inherently dangerous in this analysis if it, when “used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death.” By this standard, most pocketknives or utility knives would not meet the "deadly weapon" criteria because they are designed and constructed for use primarily as tools and not as weapons. Note that under Nevada law, an instrument that does not meet the "deadly weapon" criteria might still qualify as a "dangerous weapon," the test for which is less stringent and is based on whether that item is merely capable of causing death or substantial bodily harm under the circumstances in which it is used.

City and County Knife Laws
In the absence of a state preemption statute, Nevada counties and municipalities are free to enact knife laws which are more restrictive than state law. Very few have done so. Those which have include Clark County and the cities of Las Vegas, North Las Vegas, Henderson, and Reno. Following are synopses of these jurisdictions' knife laws; links to the relevant ordinances can be found below.
  • Clark County - Prohibits concealed knives with blades longer than three inches. No limitation on blade length for knives carried openly.
  • Las Vegas - Prohibits concealed knives with blades longer than three inches. Does not limit blade length for openly carried knives. Prohibits switchblades or automatic opening knives with blades of any length. Prohibits any person from loitering, fighting, or engaging in disorderly conduct while carrying a concealed "deadly weapon" as defined by city ordinance.
  • North Las Vegas - Prohibits concealed knives with blades longer than three inches. No limit on blade length for knives openly carried. Prohibits any switchblade or automatic opener, regardless of blade length. Prohibits the carry of ice picks or "similar sharp stabbing tools" and straight razors. Prohibits loitering, fighting, or disorderly conduct while carrying any concealed weapon.
  • Henderson - Prohibits concealed carry of knives with blades longer than three inches. Prohibits the possession of any knife "commonly known as a switchblade, spring-blade or push button knife," with no limitation on blade length.
  • Reno - Defines a "dangerous knife" as having a blade of more than two inches, and prohibits carry of same in any city park or recreation area. Prohibits, by city ordinance, the carry of any knife in a city courthouse.
State and National Parks
Nevada law does not specifically address carrying a knife within a state park, although NAC 407.105 does state that it is illegal to throw knives or other projectiles in state parks. As far as carrying a knife in any National Park, the only specific statute addressing this is 18 USC 44 § 930, prohibiting "dangerous weapons," which are understood to include knives, in any Federal park building, provided notice is given by means of a sign at the building entrance. Follow relevant state laws otherwise.
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No Duty to Retreat
In May of 2011, Nevada's governor signed AB321 into law. This bill amended NRS 200.120, which deals with the use of deadly force, by specifying that a person who uses deadly force to defend himself has no legal "duty to retreat" prior to doing so as long as he:
  • Is not the original aggressor;
  • Has a right to be present at the location where deadly force is used; and
  • Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used.
This statute applies to any use of deadly force, including self-defense with edged weapons.

Nevada Court Cases

Since the Nevada Revised Statutes are largely silent regarding knives, case law has given us a number of important precedents. Following are synopses of a few relevant NV Supreme Court cases, with links to the full text of each decision.
  • Huebner v. State, 1987 - This case is important from the standpoint of Nevada knife law, since it codified two central principles. When arrested for a separate offense, Huebner was in possession of a four-inch knife concealed in what appeared to be a ballpoint pen, and was charged with possession of a concealed weapon and convicted. Huebner claimed that the weapon was not concealed, since the "pen" part of it was clearly visible in his pocket at the time of his arrest, and appealed. In upholding his conviction, the Court clarified that a weapon is still concealed, even if visible, if because of the appearance of the visible portion it appears to be some other implement. A footnote to the Court's decision also specified the definition of "dagger" that has been used by Nevada courts since then, even though such a definition was not central to the case.
  • Bradvica v. State, 1988 - Bradvica was arrested for an unrelated offense and found to be carrying an automatic opening knife with a blade measuring 2 5/16 from tip to handle. He was convicted of carrying a "dangerous knife" under the (since superseded) wording of NRS 202.350 at that time. He appealed his conviction to the Nevada Supreme Court, which found that the wording "dangerous knife" was sufficiently vague as to be meaningless. The Court's opinion also defined the "blade" of a knife as "that portion which is customarily sharpened from the tip of the knife to the tang, or the unsharpened extension of the blade which forms the hinge connecting the blade to the handle." By that definition, the blade of Bradvica's knife only measured 1 15/16 inches, meaning that the knife did not meet the definition of a "switchblade" under Nevada law, being less than two inches long. His conviction was overturned.
  • Zgombic v. State, 1990 - This case introduced the requirement that in order for an item to be a "deadly weapon" for purposes of sentencing or enhancements to sentencing, it must satisfy the "inherently dangerous" test. In Zgombic's case, the object in question was a pair of steel-toed boots, which was demonstrably not, when used "in the ordinary manner contemplated by its design and construction," inherently likely to cause death or substantial bodily harm. While this was not a knife law case per se, the "inherently dangerous" qualification to determine whether or not an instrument should be considered a "deadly weapon" has since been used by the Court in cases that did involve knives.
  • Buff v. State, 1998 - The Nevada Supreme Court's opinion in this case applied the "inherently dangerous" standard for a deadly weapon introduced in Zgombic v. State to a Swiss army knife. The court found that even though the knife in question was used as the weapon in an murder, it was not by definition a "deadly weapon" as it did not meet the requirements of that test.
  • Knight v. State, 2000 - In this case, Knight was convicted of carrying a concealed weapon after being arrested while carrying a steak knife concealed on his person. The Nevada Supreme Court recognized that the steak knife did not constitute a "dirk or dagger" as specified in the CCW statute, and further codified the definition of these two implements by introducing the "relevant factors" of handguards and a locking blade to be considered when determining whether or not a knife meets that definition. The Court also recognized that under the totality of the circumstances surrounding Knight's arrest, it was evident that he was carrying the steak knife to use as a weapon, and therefore his conviction was upheld.

Nevada State Knife Laws

Nevada Revised Statutes
The short titles of each statute are listed below; click on a statute to read the entire text. This is not intended to be a complete or exhaustive list of all Nevada knife or self-defense laws.
  • NRS 202.265 - Possession of dangerous weapon on property or in vehicle of school or child care facility; penalty; exceptions.
  • NRS 202.320 - Drawing deadly weapon in threatening manner.
  • NRS 202.350 - Manufacture, importation, possession or use of dangerous weapon or silencer; carrying concealed weapon without permit; penalties; issuance of permit to carry concealed weapon; exceptions.
  • NRS 202.355 - Manufacture or sale of switchblade knives: Application for permit; eligibility; public hearing; restrictions.
Nevada Administrative Code
  • NAC 407.105 - Possession or use of weapons in state parks.
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City and County Knife Ordinances

The short titles of each city and county ordinance are listed below; click on an ordinance to read the entire text. This is not intended to be a complete or exhaustive list of all city and county knife laws or self-defense laws.
Clark County Ordinances:
Las Vegas City Ordinances:
North Las Vegas City Ordinances:
Henderson Municipal Code:
  • HMC 8.98.010 - Concealed weapons prohibited except by permission.
  • HMC 8.98.070 - Switchblades and similar weapons prohibited.
Reno Municipal Code:


Tuesday, November 27, 2018

For Immediate Release - November 26th, 2018 - The Motorcycle Riders Foundation Contracts with Husch Blackwell Strategies

For Immediate Release 
November 26th, 2018

The Motorcycle Riders Foundation Contracts with Husch Blackwell Strategies

As the 115th Congress nears an end the Motorcycle Riders Foundation (MRF) has contracted with Husch Blackwell Strategies (HBS) a Washington, DC. based lobbying firm to pursue passage of our anti-profiling resolutions in both the House of Representatives and the Senate. Our membership has stressed to the MRF how important these resolutions are to the motorcycling community and we are taking proactive steps to seek passage before the end of the year. HBS will advocate for us on Capitol Hill and continue the momentum that we have built over the last two years with this Congress.

Husch Blackwell Strategies (HBS) is a Washington, DC based lobbying firm with a dozen federal lobbyists representing both ends of the political spectrum. The staff at HBS has decades of experience both on Capitol Hill and on K Street advocating for client interests. HBS has a diverse client base representing everything from Fortune 500 companies to small trade associations. Additionally, HBS has a growing state lobbying practice with offices in Texas, Nebraska, Wisconsin and Missouri.

William “Rocky” Fox will lead our efforts with assistance from his colleagues at HBS.  Mr. Fox has over a decade of experience in the lobbying world. He has helped represent such clients as the Outdoor Amusement Business Association, MGM Casinos, Drive Right USA and AT&T. Mr. Fox began his career as a staffer on the House Transportation Committee during the passage of the 2005 Transportation bill (SAFTEA-LU). He is a graduate of the University of San Diego and holds a Master’s Degree in Public Policy from American University.

Below in a link to the HBS website:


Monday, November 26, 2018

Sunday, November 25, 2018

Sacramento "City" California Knife Ordinance 2016 ( Knife Laws )


NOTE - I am NOT a lawyer and this post is for informational purposes only. If you need real legal advice on this matter, please contact a criminal law attorney.

Sacramento "City" California Knife Ordinance 2016 ( Knife Laws ) - Published on Oct 30, 2016

City of Sacramento California is in Sacramento County, so abide by its Ordinances as well as California Penal codes.

This talks about the City of Sacramento California's, knife Ordinances that's city not county. Okay, so there seems to be a few, so please read

In title 9, Public Peace, Morals & Welfare, there is Chapter 9.32, Weapons & Explosives. within that, Article I, In General. Within that there is Sec 9.32.010, "Dangerous or deadly weapon" defined. It states the term "dangerous or deadly weapon" includes, but is not limited to, any dirk or dagger; any knife with a blade 3 inches or more in length; any snap blade, spring blade or push button knife, regardless of the length of the blade; any ice pick or similar sharp stabbing tool; any straight edge razor or any razor blade fitted to a handle; any dangerous or deadly weapon within the meaning of any law of this state restricting the use thereof; any cutting, stabbing or bludgeoning weapon or device capable of inflicting grievous bodily harm & any firearm other than one carried pursuant to a valid permit, issued by a duly authorized governmental authority, or any ordinary rifle or shotgun lawfully carried for purposes of hunting or other lawful sport.

Penal code 16470 states, as used in this part, dirk or dagger means a knife or other instrument with or without a hand guard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A non locking folding knife, a folding knife that is not prohibited by Sec 21510, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed & locked into position.

Sec 9.32.060, Sale of push button or spring blade knives. It states, it is unlawful for any person to sell or give to anyone in the city any push button or spring blade knife.

Sec 9.32.040, Person carrying concealed dangerous or deadly weapon . Not to loiter about place where intoxicating beverages sold or other place of public resort. It states. It is unlawful for any person who has concealed upon his or her person any dangerous or deadly weapon to loiter about any place where intoxicating liquors are sold or any other place of public resort.

Sec 9.32.020, Person carrying concealed dangerous or deadly weapon . Not to hide, loiter, etc., in public place or on premises of another or wander from place to place. It states. It is unlawful for any person, while carrying concealed upon his or her person any dangerous or deadly weapon, to loaf or loiter upon any public street, sidewalk or alley or to wander about from place to place with no lawful business thereby to perform, or to hide, lurk or loiter upon or about the premises of another.

Sec 9.32.030 Person carrying concealed dangerous or deadly weapon . Not to engage in fight, disorderly conduct, etc., in public place or on premises of another. It states. It is unlawful for any person who has concealed upon his or her person or who has in his or her immediate physical possession any dangerous or deadly weapon to engage in any fight or to participate in any other rough or disorderly conduct upon any public place or way or upon the premises of another.

In Sec 9.32.050, Dangerous or deadly weapons prohibited in cars. It is unlawful for any person to have in his or her possession, in any automobile, any dangerous or deadly weapon, but this restriction shall not be deemed to prohibit the carrying of ordinary tools or equipment carried in good faith for uses of honest work, trade or business or for the purpose of legitimate sport or recreation.

In Title 8, Health & Safety there is, Chapter 8.08, called. Social Nuisance Code, within that Sec 8.08.080, Generally it states, it is declared a public nuisance & a violation of this code for any person, firm or corporation, whether owner, lessee, sublessor, sublessee or occupant of any premises in this city to permit those premises to be used in such a manner that any one or more of the activities described in the following subsections are found to occur repeatedly thereon. in sub section. F. The firing of gunshots or brandishing of weapons as defined by Penal Code Sec 12020 by a resident, or by a guest of a resident.

San Francisco’s Restrictions on Carrying Knives

If you ride a motorcycle, it is important to understand state and local knife laws to reduce the risk of a traffic infraction escalating to a weapons charge.
In our last post, we discussed California’s laws on carrying knives, including a look at laws specific to the City and County of Los Angeles. The City of San Francisco takes these laws even further. Under SF Police Code Article 17, § 1291(a), the city designates all of the following as “dangerous weapons”: any knife with a blade three inches or more in length; any spring-blade, switch-blade, or snap-blade or other similar type knife; any knife any blade of which is automatically released by a spring mechanism or other mechanical device; any ice pick, or similar sharp, stabbing tool; any straight edge razor or any razor blade fitted to a handle; and any cutting, stabbing, bludgeoning weapon or device capable of inflicting grievous bodily harm.
Note that at the state level, a switchblade under 2″ is legal. In SF, possession of “any spring-blade, switch-blade, snap-blade knife, or other similar type knife, or any knife any blade of which is automatically released by a spring mechanism or other mechanical device” is illegal, with a mandatory minimum of 30 days in the clink. See 17 SFPC § 1292.
Under 17 SFPC § 1291(b), if you carry any “dangerous weapon” (defined above) concealed on your person, it is a crime to “loaf or loiter upon any public street, sidewalk, or alley, or to wander about from place to place, with no lawful business thereby to perform, or to hide, lurk, loiter upon or about the premises of another.” A lot of people might see this as overbroad, as in, the police could stop you at any time you were not actively on a job, on your property or on another’s property as a guest. The courts, however, have found (1) that San Francisco (and other cities) can supplement the less restrictive state laws, and (2) that this restriction is not overbroad, since it’s touching on a defined weapon. See Yuen v. Municipal Court (1975). And if you’re carrying a concealed “dangerous weapon” on your person, you can’t legally be in any place in the City of San Francisco where intoxicating liquors are sold, or any other place of public resort (for instance, a farmer’s market, flea market, street fair), even if you’re a paying customer. See 17 SFPC § 1291(d).
There’s an exception to all of these for “ordinary tools or equipment carried in good faith for uses of honest work, trade or business or for the purpose of legitimate recreation,” and this will usually cover your folded pocket knife, assuming you can explain why you need it. See 17 SFPC § 1291(e).
Additionally, under San Francisco Park Code § 4.01, carrying “dirk” knives, “bowie” knives or other fixed blade knives in a park is considered to be disorderly conduct, it doesn’t matter if it’s openly carried legally under state law, it’s still not allowed in a park. That’s another way that SF’s laws are stricter than the state laws.
The same goes for Port lands: under SF Port Code § 3.1, carrying “dirk” knives, “bowie” knives or other fixed blade knives on Port lands is considered to be disorderly conduct. Again, it makes no provision for if it’s openly carried legally under state law. You have to watch out here, because a lot of SF is Port land.

If you’re convicted under any part of § 1291, § 4.01 or § 3.1, you’re looking at a misdemeanor on the record and up to 6 months in the slammer, a $500 fine, or both. See 17 SFPC § 1291(f).


San Francisco attorney, Bill Weiss, a true biker attorney is publishing California state and city knife laws. In addition to state law, each county and local municipality can (and in most cases do) issue their own local ordinances. So, it is important to know how these laws affect you as you travel within California.
I highly recommend that you follow Bill's blog as he continues to publish his research affecting you in your local area.
If you live in northern California and can attend a local motorcycle coalition meeting in San Francisco, San Mateo or Alameda County, you can talk to Bill directly on knife laws and ask questions.
So far, Bill has published knife laws in the following areas...
- California
- San Francisco
- Oakland
....with more to come.
Remember that carrying any weapon, even one that’s legal, can cause you a lot of grief with law enforcement.  Cops routinely write tickets and make arrests for things they incorrectly think are illegal, or full well know not to be illegal. Beating a rap in court is great, but better is never being there in the first place.
In California, the state knife laws are the baseline law, and cities can make more restrictive knife laws on top of the state laws.  See Yuen v. Municipal Court (1975) or People v. Gerardo (1985).  Since we’ve addressed the state laws in other entries in this series, this synopsis places the Oakland laws first, and then outlines below the state laws that form the baseline rules.     
In addition to all of the state laws outlined below, Oakland has voted knife restrictions that are significantly more stringent than the state’s laws. In Oakland, all of the following are classified as a “dangerous weapon”: (1) any knife with a blade three inches or longer; (2) any snap-blade or spring-blade knife regardless of the length of the blade; (3) any ice pick or similar sharp stabbing tool; (4) any cutting, stabbing or bludgeoning weapon or device capable of inflicting grievous bodily harm; (5) any dirk, dagger or bludgeon (the state law section has definitions of these).  See Oakland Municipal Code § 9-36.010.
Regardless of state law, it is illegal in the city of Oakland to carry a “dangerous weapon” as defined above, whether open or concealed, or even to have one under your control (for instance, in your saddlebag or under the seat of your car). See OMC § 9-36.020.  As usual, there is an exception for knives you carry for purposes of a lawful occupation or lawful recreation. See § 9-36.020. All switchblades, including anything with a spring or snap mechanism of any sort, are illegal to possess, sell or use in any way whatsoever, ie. there’s no lawful exception for work or recreation.  See § 9-36.040.  If you’re in an Oakland city park, the only knife you’re allowed to carry without permission from the Parks Board is a pocket knife. See § 12-64.020.      
If you get into a fight in Oakland or get into a “rough or disorderly conduct” situation (and that can cover a lot of things), and you’re carrying a blade classified as a “dangerous weapon,” you’ll be charged – at a minimum – with a separate disorderly conduct violation in addition to the knife charge.  See § 9-36.030. 
All of the above described violations are classified as misdemeanors, punishable by up to 6 months in the slammer, a $1,000 fine, or both the time and the fine.      
In addition to these, Oakland goes further than most other cities in California in their use of civil actions to combat people they view as criminals.  In 2004, the city government came up with a plan to fight gangs and crime by leveraging their legal control of the eviction process.  To wit, they came up with a plan to systematically take action to evict people who had broken laws and municipal ordinances.  This plan was codified in law as Oakland Municipal Code Chapter 8, section 23.100, the “Eviction for Nuisance and Illegal Activity Ordinance.”  Here’s what this ordinance is, how it works, and what it has to do with knife laws. 
Municipal Code § 8-23.100 was created to expand the illegal activities that can be used to require landlords to bring eviction actions against individuals,  to penalize owners for allowing undesirable people and behavior on their property, to authorize the City to take other action against the rental property owner when he won’t act, to enable rental property owners to let the City itself take over the eviction action, to single out the specific person instead of everyone on the premises, and to create a quick and easy process to do all of the above. See § 8-23.100(A). 
Under this ordinance, the category of “weapon” includes all “deadly weapons” as defined in California BPC § 7500.1(h), which lists slungshots, metal knuckles, dirks, daggers, and any knife with a blade longer than five inches.  See § 8-23.100(B). 
In Oakland, by this ordinance, all leases between landlord and tenant automatically include a provision that prohibits all illegal activity on the premises, including illegal possession of a weapon as defined under above. See § 8-23.100(C). Under § 8-23.100(C) and § 8-23.100(D), any tenant who violates this prohibition or allows a violation is automatically subject to eviction under Oakland’s ‘Just Cause’ eviction section, § 8-22.360. Let me repeat that: if you violate this ordinance by possessing, say, a slungshot or a knife with a 5″ blade, in your own home or shop, you’re open to the eviction process outlined in the ordinance. 
When the landlord learns about the violation, he’s barred from allowing the person to continue violating the ordinance, and he himself becomes on the hook with the city for fines, so he has three options.  See § 8-23.100(D).  First option is that he can ensure that the tenant stops violating, second option is that he can take action to evict the tenant, and the third option is that he can notify the city and ask them to take action to evict the tenant. See § 8-23.100(D)-(F).  If the owner doesn’t take action within a specified amount of time, he can be liable for fines. See § 8-23.100(F).
What this means for knife law is that in Oakland, it’s possible for you to be evicted from your rented home or business if you’re keeping illegal knives on the premises.  The case where this is most likely to occur would be in clubhouses, or places where people carrying illegal weapons are hanging out most often, but theoretically it could happen anywhere in the city that you rent from a landlord.  If you’re renting a place, and you’ve had cops take you or someone else away on a dangerous weapon charge for, say a slungshot or a long blade, take care that you don’t get a second offense that triggers action by the landlord and/or the City. In Oakland, there’s iron in the glove, they have a lot of power under § 8-23.100, and so far the courts have not found anything in the exercise of this power to be unconstitutional.   
Here are the baseline knife laws in California. 
Concealed Knives, Dirks, and Daggers – Penal Codes § 12020, § 20200 & § 21310
In California, folded pocked knives are legal, but it is illegal for any person to concealed carry any knife legally described as a “dirk” or “dagger” — the legal terms for any fixed-blade knife or stabbing weapon.  See § 12020(4). Even a locked pocket knife can count, so can a screwdriver in some cases. See § 16470.  BUT carrying a “dirk” or “dagger” in an openly-worn sheath hanging on your hip is not concealment within the meaning of the statute.  See § 12020(25)(d) and § 20200.   
Switchblades  – Penal Codes § 17235 & 21510
Switchblades and other spring-loaded knives are illegal in California if their blade is 2″ or longer. A switchblade is a knife with “the appearance of a pocketknife and includes a spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever.” See § 17235.  The statute expressly excludes pocket knives that can be opened with one hand by pushing the blade open with one’s thumb, as long as the knife “has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position.”  See § 17235.  Basically, your regular pocket knife is legal, and switchblades are legal if they’re under 2″.   
The law is zero tolerance on these, and they’ll bang you with a misdemeanor charge if you: (a) possess the knife in the passenger’s or driver’s area of any motor vehicle in any public place or place open to the public; (b) carry the knife upon the person; (c) sell, offer for sale, expose for sale, loan, transfer, or gives the knife to any other person. See § 21510.  The Court of Appeals held that possession of a switchblade in a person’s pocket, boot, etc., is unlawful, even if even if in one’s own home.  See People v. S.C. (2009).  Modifying a pocket knife into a switchblade-like knife makes it a switchblade.  See People v. Angel R. (2008). 
Cane Swords and other Disguised Blades – Penal Codes § 16590 
Generally, any knife or blade that is disguised so as to not look like a weapon is also illegal in California. See § 16590.  This includes, cane swords (§ 16340), belt-buckle knives (§ 16260), lipstick case knives (§ 16830), air gauge knives (§ 16140), writing pen knives (§ 17359), so-called ballistic knives (§ 16220), a staff or crutch (§ 17260), etc.  Blades that are undetectable to metal detectors (e.g., ceramic blades) are also illegal. See § 20810 and § 17290.  Remember, just because your blade isn’t explicitly described under the law, doesn’t mean the cops can’t find some way to write you up under the closest description.  I once had a client wearing rings the police magically made into “metal knuckles” under PC § 21810 because he was wearing a cut. They also used the cut to add a gang enhancement to the “weapon” of rings, sorry, “metal knuckles.”       
Possession of Knives on School Grounds – Penal Code § 626.10
It is illegal for any person to bring or possess “any dirk, dagger, ice pick, knife having a blade longer than 2 1/2 inches, folding knife with a blade that locks into place, [or] razor with an unguarded blade . . . upon the grounds of, or within, any public or private school providing instruction in kindergarten or any of grades 1 to 12 . . .”  See § 626.10(a)(1). Subsection (b) of the statute provides that it is illegal for any person to possess “any dirk, dagger, ice pick, or knife having a fixed blade longer than 2 1/2 inches upon the grounds of, or within, any [college or university].”
Possessing a Knife in a Government Building – Penal Code § 171b
Legal blades 4″ or longer that are fixed or capable of being fixed are illegal within any state or local public building or at any meeting required to be open to the public. See § 171b(A)(3). Here, a “state or local public building” is a building that is owned or leased by the state or local government, with state or local public employees working on a regular basis. See § 171b(C)(1). 
Brandishing Knives – Penal Code § 417
In California, it is illegal to brandish any deadly weapon, knives included.  See § 20200-21590 broadly. The law states that it is unlawful for any person to “draw or exhibit any deadly weapon . . . in a rude, angry, or threatening manner, or . . . to unlawfully use a deadly weapon.”  See § 417(A)(1).  This does not include use of such a weapon in self defense. See § 417(A)(2). Watch out, there is a mandatory minimum on this one of thirty days, in addition to anything else they nail you for.  See § 417(A)(1).
So that’s where we stand! Tune in next time to learn about knife laws in Alameda County.

Bill Weiss has long experience in personal injury and civil rights cases on behalf of the motorcycle community. He is one of the only attorneys in California that represents bikers in civil rights cases against law enforcement. He has recovered millions of dollars on behalf of his clients who have been injured in motorcycle collisions and other personal injury cases, as well as civil rights cases.   

San Francisco’s Restrictions on Carrying Knives

In our last post, we discussed California’s laws on carrying knives, including a look at laws specific to the City and County of Los Angeles. The City of San Francisco takes these laws even further. Under SF Police Code Article 17, § 1291(a), the city designates all of the following as “dangerous weapons”: any knife with a blade three inches or more in length; any spring-blade, switch-blade, or snap-blade or other similar type knife; any knife any blade of which is automatically released by a spring mechanism or other mechanical device; any ice pick, or similar sharp, stabbing tool; any straight edge razor or any razor blade fitted to a handle; and any cutting, stabbing, bludgeoning weapon or device capable of inflicting grievous bodily harm.
Note that at the state level, a switchblade under 2″ is legal. In SF, possession of “any spring-blade, switch-blade, snap-blade knife, or other similar type knife, or any knife any blade of which is automatically released by a spring mechanism or other mechanical device” is illegal, with a mandatory minimum of 30 days in the clink. See 17 SFPC § 1292.
Under 17 SFPC § 1291(b), if you carry any “dangerous weapon” (defined above) concealed on your person, it is a crime to “loaf or loiter upon any public street, sidewalk, or alley, or to wander about from place to place, with no lawful business thereby to perform, or to hide, lurk, loiter upon or about the premises of another.” A lot of people might see this as overbroad, as in, the police could stop you at any time you were not actively on a job, on your property or on another’s property as a guest. The courts, however, have found (1) that San Francisco (and other cities) can supplement the less restrictive state laws, and (2) that this restriction is not overbroad, since it’s touching on a defined weapon. See Yuen v. Municipal Court (1975). And if you’re carrying a concealed “dangerous weapon” on your person, you can’t legally be in any place in the City of San Francisco where intoxicating liquors are sold, or any other place of public resort (for instance, a farmer’s market, flea market, street fair), even if you’re a paying customer. See 17 SFPC § 1291(d).
There’s an exception to all of these for “ordinary tools or equipment carried in good faith for uses of honest work, trade or business or for the purpose of legitimate recreation,” and this will usually cover your folded pocket knife, assuming you can explain why you need it. See 17 SFPC § 1291(e).
Additionally, under San Francisco Park Code § 4.01, carrying “dirk” knives, “bowie” knives or other fixed blade knives in a park is considered to be disorderly conduct, it doesn’t matter if it’s openly carried legally under state law, it’s still not allowed in a park. That’s another way that SF’s laws are stricter than the state laws.
The same goes for Port lands: under SF Port Code § 3.1, carrying “dirk” knives, “bowie” knives or other fixed blade knives on Port lands is considered to be disorderly conduct. Again, it makes no provision for if it’s openly carried legally under state law. You have to watch out here, because a lot of SF is Port land.

If you’re convicted under any part of § 1291, § 4.01 or § 3.1, you’re looking at a misdemeanor on the record and up to 6 months in the slammer, a $500 fine, or both. See 17 SFPC § 1291(f).

US policing - Police violence, cliques, and secret tattoos: fears rise over LA sheriff 'gangs'

Police violence, cliques, and secret tattoos: fears rise over LA sheriff 'gangs'

Investigation faces skepticism amid concerns that groups, linked to a history of attacks on inmates, are resurgent
Between 10 and 20 deputies at the Compton station had tattoos like Samuel Aldama’s, above, he said.
 Between 10 and 20 deputies at the Compton station had tattoos like Samuel Aldama’s, above, he said. Photograph: Courtesy John SweeneyJohn Sweeney knew from his four decades as a civil rights lawyer that something about the police shooting of Donta Taylor was off.Taylor, a 31-year-old African American, had been walking from a friend’s house in Compton to a nearby grocery store one summer night when members of the county sheriff’s department challenged him, gave chase and ended up firing more than a dozen shots at him along a lonely concrete pathway alongside a canal.
To Sweeney, who had cut his teeth as an associate of the legendary civil rights lawyer Johnnie Cochran, the 2016 killing smacked of an execution, the work of renegade police officers reveling in violence for the sake of it. It was no more than a hunch, at first.The police claimed that Taylor had been wearing gang colors – Compton is the birthplace of the notorious Crips and Bloods – and had pulled a semi-automatic handgun from his waistband. But no gun was ever found at or near the scene, and Taylor was not suspected of being involved in criminal activity when the officers approached.“They stopped him for no reason. No reason!” Sweeney said in an interview with the Guardian. “He’d gone out to buy a Sprite and a single [cigarette]. And it hit me that something was going on, that they were doing this to become a member of something or to gain favor … because this is not policing.”Sweeney later learned that the same two officers had delivered a savage beating to another young black man in Compton a few months earlier. Sheldon Lockett had been standing with a friend outside his godmother’s house in broad daylight when, according to eyewitnesses, the officers showered him with racial abuse, repeatedly used a Taser on him and shoved a night stick into an eye socket, causing him permanent damage. Again, the officers claimed to have seen a gun. Again, no gun was ever found.Then came the moment of truth.At a deposition hearing in May, Sweeney asked one of the officers, Samuel Aldama, if he harbored racial animus toward African Americans, and Aldama spent close to five minutes struggling to give an answer. At first Aldama said he did have ill feelings, then changed tack and said he’d misunderstood the question.Next, Sweeney asked Aldama if he had a tattoo. After some hesitation, Aldama showed an elaborate image on his calf of a frightening skeletal figure wielding a rifle. Between 10 and 20 deputies at the Compton station had the same tattoo, he acknowledged.Sweeney hadn’t known about the tattoo in advance. But he did know that the Los Angeles sheriff’s department had a history of violent gang-like cliques that glorify violence for its own sake and pressure deputies to break the rules so they can prove their bona fides and “earn their ink” in the form of just such hidden tattoos.Read moreThe revelation wasn’t just a Perry Mason moment in court. It has jolted civic leaders in Los Angeles, just a few years after an epic scandal in which sheriff’s deputies, supported and protected by senior officers up to the sheriff himself, were found to have engaged in systematic beatings of prisoners, helped smuggle drugs and other contraband in and out of jail on behalf of White Power gang leaders, and worked to conceal aspects of the scandal from the FBI.Lee Baca, the former sheriff, as well as his former No 2 and close to a dozen former sheriff’s deputies, have been prosecuted and convicted of an array of offenses from abuse of police power to obstruction of justice.Jim McDonnell, the current boss of what is America’s largest county police department, has ordered an internal investigation into what he called “renegade cliques” and insisted – despite an official finding by the district attorney’s office last year in favor of Aldama and his partner, Mizrain Orrego – that the Compton incidents are still being investigated.That has done little to satisfy McDonnell’s internal critics, who complain he has been a reformer in name only, and threatens to cast a harsh spotlight on everything from controversial shootings to staff and equipment shortages as McDonnell faces an unexpectedly tough re-election battle against a 30-year department veteran in November.It has also incensed civil rights leaders, six years after a county report coauthored by McDonnell (then police chief in the port city of Long Beach) which described how deputies belonging to secret cliques would dare each other to beat or kill jail inmates and let them add details to their tattoos every time they did. Deputies would sometimes get into fights with rival clique members – including a notorious dust-up at a department Christmas party in 2010 that led to six deputy firings – or beat up honest deputies who refused to accept the dare.The concern is that this behavior is now making a resurgence, in part because some rank-and-file deputies have developed an us-versus-them mentality following the rise of Black Lives Matter and other civil rights groups angry about police shootings of civilians, and in part because the department brass has not been cleaned up the way McDonnell promised when he took office.“This goes a whole lot higher up in the Compton station,” Sweeney charged. “The captain claims he didn’t know. These officers change from their civilian clothes into their uniforms in the locker room every day, and you’re going to tell me, up to 20 people have that tattoo and it’s not going to raise questions? Of course they knew about it.”A union representative at a different sheriff’s station, who spoke frankly on condition that he not be identified, told the Guardian that not all tattoos were equal. Some deputies got them as a mark of genuine pride, an indication that they were willing to do the job right and go after violent criminals regardless of the risks. For others, though, tattoos were more secret, and more sinister.“Why does it have to be a skull holding a rifle? How does that stand for hard work?” the union rep said of the Compton ink. “What it indicates is more of a thug mentality, doing things that are – wink, wink – not exactly above board. It starts to change the way deputies treat each other. At the East LA station, friends have told me about three different tattoos. Sometimes the three groups fight each other. That’s totally unacceptable, not at all how cops should be behaving.”A decade ago, the department was in thrall to a shadow leadership structure in which deputies were encouraged to “work in the gray”. Many maintained a code of silence about abuses both to protect each other and to earn promotions. Dirty cops who kept to the code were said to be “in the car” with the undersheriff, Paul Tanaka, a one-time member of the notorious clique the Lynwood Vikings.In his youth, Tanaka had been one of five Viking officers held responsible for the killing of an unarmed Korean immigrant who ran a stop sign in Lynwood in 1988. Three years later, a federal judge described the Vikings as a “neo-Nazi, white supremacist gang” who routinely flouted the constitution. The department ended up paying nearly $10m in settlements because of the Vikings’ actions, and Tanaka’s career appeared doomed – until Baca took office and put him on the fast track to the top.As undersheriff, Tanaka had an executive email list of trusted underlings – a list that many in the department hoped McDonnell would use for guidance in purging the ranks. Instead, insiders say, McDonnell has kept many of Tanaka’s former acolytes and in several instances promoted them. (Tanaka himself is serving a five-year sentence for conspiracy and obstruction.)All that is likely to come under renewed scrutiny as the November election approaches. The dark horse candidate challenging McDonnell, the retired police lieutenant Alex Villanueva, has based his entire campaign on the need for reform and what he calls a corrupt political patronage system shredding morale.“In comes McDonnell and not only did he leave the entire system intact,” Villanueva told the Guardian, “he left the key players intact in the same positions and promoted them … He’s surrounded himself with people giving him bad advice. It’s the fox guarding the henhouse.”The union rep broadly concurred. “The rank and file absolutely loathe McDonnell,” he said. “I don’t know if it’s a compulsion or a delusion, but he’s focused almost entirely on the cosmetic. He has done almost nothing towards serious reform, and the radio frequency goes down about once a week, but we’re spending $1m to replace the silver buttons on our belts with brass ones. What has that got to do with anything?”McDonnell himself has sought to play down the significance of the Compton shootings, saying the revelations in Aldama’s deposition do not “in any way reflect [the sheriff’s department] of today”. The captain at the Compton station told the Los Angeles Times that Aldama was confined to desk duty, while Orrego has been fired for an unrelated offence.John Sweeney, however, is continuing to apply the pressure. In the next few days he will put billboards up around Compton asking for anyone who believes he or she has been victimized by Aldama or Orrego to come forward. “We suspect there are a lot of victims of this gang,” Sweeney said. “This may be the tip of the iceberg.”Since you’re here…… we have a small favour to ask. More people are reading the Guardian’s independent, investigative journalism than ever but advertising revenues across the media are falling fast. And unlike many news organisations, we haven’t put up a paywall – we want to keep our journalism as open as we can. So you can see why we need to ask for your help.The Guardian is editorially independent, meaning we set our own agenda. Our journalism is free from commercial bias and not influenced by billionaire owners, politicians or shareholders. No one edits our Editor. No one steers our opinion. This is important because it enables us to give a voice to the voiceless, challenge the powerful and hold them to account. It’s what makes us different to so many others in the media, at a time when factual, honest reporting is critical. The Guardian’s investigative journalism uncovers unethical behaviour and social injustice, and has brought vital stories to public attention; from Cambridge Analytica, to the Windrush scandal to the Paradise Papers.If everyone who reads our reporting, who likes it, helps to support it, our future would be much more secure. For as little as $1, you can support the Guardian – and it only takes a minute. Thank you.

Saturday, November 24, 2018

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