Best if printed in landscape.
of U.S. Legal System
understand our laws, it is helpful to understand our legal system; that
is, the process
by which our laws are developed and
enforced. This understanding also helps us recognize how we can influence
the law. We will begin with an overview of the structure of our federal
The ultimate source
of the law is the people -- this is an absolutely critical point. The law is not determined by a king, monarch, or dictator. It is determined by our elected officials, and if we do not agree with their decisions, we can vote for other representatives at the next election.
- Some states also allow voters to decide about specific laws; these processes are referred to as inititative and referendum; for example, see Art. III, Section 1 of the North Dakota Constitution.
The following table summarizes the US structure of government. The following list of points expands on that summary.
of U.S. Federal Government
Indicates what government is empowered to do and what government is prohibited from doing.
Congress (all members are elected)
and agencies (only the president is elected; all others are appointed by the president and confirmed by the Senate, or hired)
- Trial (district
(circuit courts of appeal and Supreme Court)
Federal judges are appointed by the president and confirmed by the Senate
- Enacts statutory
law that sets policy
the programs set forth by Congress in the statutory laws
or vetos legislation
disputes by determining facts and applying the law
the Constitution, statutes and common law; interpretations are not
intended to set policy, but...
by Constitution and statutes
regulations that describe how the executive agencies will admininster the law to achieve the goals set forth by the Congress in the underlying statute
common law by rendering court
decisions/legal opinions |
- The Constitution is the document in which "the people" describe the processes by which we will interact with one another. The Constitution also is the document in which we state (agree) that we will accomplish some of our interactions through a government (see the Preamble to the U.S. Constitution).
- We the
people of the United States, in order to form a more perfect union,
establish justice, insure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the blessings
of liberty to ourselves and our posterity, do ordain and establish
this Constitution for the United States of America.
- Every aspect of our legal system and government must be consistent with the Constitution.
- The U.S. Constitution is the supreme legal authority
in our nation -- all statutes, regulations and court decisions at the federal, state
and local government levels must be consistent with (cannot conflict
with) the U.S. Constitution.
- The government cannot enact any law or take any action that conflicts with the authorities and responsibilities the people have granted to the government. These authorities and responsibilities are delineated in the Constitution.
- The Constitution belongs to the people; for example, it can be amended only by the people. It cannot be amended by Congress.
- See Article V
- The U.S. Constitution is changed (amended) only with the approval of the states.
- A constitutional amendment is proposed by either Congress or 2/3 of the state legislatures.
- An amendment is approved by either 3/4 of the state legislatures or state conventions called for the purpose of considering the proposed amendment.
- See Article V of the Constitution.
- States specify the process for amending their state constitution.
- In North Dakota (and many other states), voters have reserved the right to directly vote on law; see North Dakota Constitution, Article III, Section 1:
- "the people reserve the power to ... propose and adopt
constitutional amendments by the initiative"
- An initiative involves citizens circulating petitions for voters to sign indicating that they want the proposed amendment placed on the ballot for the next election, and thereby allowing citizens to vote on whether to amend the state constitution.
- The Constitution
delineates the authorities/powers that have been granted (by the people)
to goverment. The Constitution also states what that people prohibit the government from doing.
- Fro example, the Constitution specifies the rights
held by society through government
- Example --
"The Congress shall have power to ... to regulate commerce with
foreign nations, and among the several states, and with the Indian
tribes" Article 1, section 8.
- The assumption
is that legal rights are held by individuals, unless we have agreed
that they should be held collectively, and we use government to
administer the rights we want collectively held.
- The Constitution also specifies limits
- Example --
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the government
for a redress of grievances"
- Note: this amendment prohibits government from establishing a religion, but it does not prohibit citizens from using their values -- including their religious values -- to shape personal ideas that can then be presented to elected officials as they shape public policy.
- Example --
"No person shall ... be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken
for public use, without just compensation" Amendment V.
- Ideally, government acts on behalf of society. This is
consistent with the idea that law reflects society's values. Our government
is not "they;" it is "we" acting collectively.
- The Constitution establishes procedures
for resolving disputes among individuals (i.e., the judicial system).
- The Constitution establishes three
branches of government:
-- Congress (legislature at the state level),
- Executive --
President and agencies (governor at the state level), and
- Judicial --
trial and appellate courts.
- The legislative branch is comprised of elected
representatives who consider proposed policies; if a majority of the
representatives support the proposed policy, the group enacts a statutory
- The legislative branch debates and establishes public policy.
- This course
does not focus on policy issues; that is, "what should be the law." Instead,
this course focuses on legal issues; that is, "what is the current law."
- Statutes generally
describe a program or direction the legislature wants the government
to pursue. Restated, the legislative branch of government directs public policy by enacting statutes.
Dakota Constitution (Article IV, section 13) states "The legislative
assembly shall enact all laws necessary to carry into effect the
provisions of this constitution."
- However, it
is generally the responsibility of the executive branch of government
to implement (execute) the program.
- Example --
State Board of Animal Health
- N.D.C.C. §36-01-08 State board of animal health
... "shall protect
the health of the domestic animals and nontraditional livestock of this state, shall determine and
employ the most efficient and practical means for the prevention, suppression, control, and
eradication of dangerous, contagious, and infectious diseases among the domestic animals and
nontraditional livestock of this state, and shall prevent the escape and release of an animal
injurious to or competitive with agriculture, horticulture, forestry, wild animals, and other natural
resource interests. For the purpose of preventing the escape and release of an animal injurious
to or competitive with agriculture, horticulture, forestry, wild animals, and other natural resource
interests, the board may, by rule, quarantine any such animal, cause any such animal to be
killed, regulate or prohibit the arrival in or departure from this state of any such animal, and at the
cost of the owner thereof, the board may detain any animal found to be in violation of any rule or
- Example --
Development, and Production of Subsurface Minerals
Jurisdiction of commission. The commission has jurisdiction
and authority over all persons and property, public and private,
necessary to enforce effectively the provisions of this chapter
... The commission acting through the office of the state geologist
has the authority: ...
- Suggestions or
ideas for proposed policies come from many sources, including citizens,
government agencies, and the president (or governor).
- Sometimes the proposal
addresses novel policy issues; other times, the proposal revisits issues
that have been previously addressed by a court or the legislature. The
reason to revisit an issue is because the current legislature wants
to reinforce, clarify, or change the current law.
- This statement by the North Dakota Supreme Court clearly indicates the respective responsibilities of the legislative and judicial branches of government.
- Statutes cannot
conflict with the Constitution
- "states may not enact laws that discriminate against or unduly burden interstate commerce... Because we conclude that Amendment E was motivated by a discriminatory purpose, we must strike it down as unconstitutional ..." S.D. Farm Bureau v. Hazeltine (2003) striking down Amendment E of the South Dakota Constitution, which limits corporate farming.
- "The ordinance
discriminates against interstate commerce [clause of the Constitution], and thus is invalid."
C & A Carbone, Inc. v. Town of Clarkstown, New York
- In some states, such as North Dakota, voters have reserved the right to directly vote on statutes; see North Dakota Constitution, Article III, Section 1:
- "the people reserve the power to propose and enact laws by the initiative, ... [and] to approve or reject legislative Acts, or parts thereof, by the referendum"
- Initiatives and referendums involve citizens circulating petitions for voters to sign indicating that they want the measure placed on the ballot for the next election, and thereby allowing citizens to vote/decide whether to adopt a new statute (initiative) or repeal an existing statute (referendum).
- The executive branch of government is led by the president at the federal level (governors at the state level). The executive branch of government also consists of the numerous government departments and agencies we often hear mentioned in our conversations.
- The executive branch executes (implements)
the statutes that the legislative branch has enacted.
- Article V,
Section 7 of North
Dakota Constitution states "The governor is the chief executive
of the state. The governor shall have the responsibility to see
that the state's business is well administered and that its laws
are faithfully executed."
- The agencies of the executive branch sets forth (promulgates)
and enforces regulations that have the force of law; regulations add
details to the broad concepts that the legislative branch described
in the statutes.
- The legislative branch may not have the expertise nor the time to set forth all the details needed to implement a policy; nor may the legislative branch want to develop such a structured approach to addressed social needs. For this reason, the Constitution empowers the executive branch to create the details (the regulations) as to how a program will be implemented. Certainly, these details have to be consistent with the goals set forth by the legislature in the underlying statute.
- A site prepared by a federal agency that briefly explains statutes and regulations.
- The general procedure a federal agency will follow when promulgating
- Publish "Advance
notice of proposed rulemaking; invitation to comment" (optional);
published in Federal Register.
- Publish proposed
regulation in the Federal
- Allow time
for comment and public hearing (opportunity for concerned or interested
person or group to comment on the proposed regulation), and
- Publish final
regulation in Federal Register.
- Procedure for North Dakota agencies to follow when promulgating a state regulation -- N.D.C.C. §28-32-10.
- Examples of the
process of promulgating federal regulations.
- "The Transportation
Department proposed Thursday that airlines be required to carve
out more space near emergency exits... The proposed rule would give
airlines the choice of removing the seat next to the window exit
or expanding the space between the rows at the window exits... But
Rep. Barbara Boxer ... said the FAA action comes "far too late for
far too many lives..." She said the FAA acted only days before a
hearing of her House Government Operations transportation subcommittee
was scheduled to examine FAA's alleged footdragging on the issue. "It
is evident that the FAA acted because the world was about to learn
of its shocking behavior..." The FAA proposal calls for a comment
period in which the proposal could be altered." (from an AP article
that appeared in The Forum several years ago). This example also illustrates how the legislative branch may
react if it feels the executive branch is not implementing a statute.
- "... cheese makers
have asked the Agriculture Department to change its standards to allow
for smaller holes -- or "eyes" -- in Grade A Swiss. Although the
standards are technically voluntary, they are used throughout the
industry to ensure consistency and determine pricing. While it may
seem trivial to some consumers, ... it is a significant issue for
cheese makers. The department is taking comments on the cheese standards
through Monday." (from an AP article that appeared in The Forum,
- Another example
of implementing a Congressional mandate -- USDA and country
of origin labeling.
- Required Reading: Example
of interaction between a Congressional statute and an agency regulation.
- Regulations cannot
conflict with the Constitution or the underlying statute that serves
as the foundation for the regulation. The executive branch of government
can do no more in implementing a program than the legislative branch
authorizes it to do. Nor can the executive branch ignore the activities that the legislative branch has mandated. The following list illustrates how the North Dakota legislature mandated some expectations, while leaving other directions to the discretion of the executive agency.
- Example -- N.D.C.C.
chapter 23-33 GROUND WATER PROTECTION; note the legislature imposes
certain requirements (e.g., "shall" in §23-33-02) but grants
the department discretion on other points (e.g., "may" in §23-33-04).
Degradation prevention program - Maintenance of waters. This chapter
establishes a degradation prevention program for the purpose of
protecting ground water resources ...
Administration of chapter. The state department of health shall administer this chapter.
Education program. The department, the commissioner, and the North
Dakota state university extension service and North Dakota agricultural
experiment station shall cooperate with other state and federal
agencies on the development of a ground water protection education
Chemical use data and confidentiality requirement. The department
may require chemical use data from product registrants ...
Ground water standards. The department shall establish standards
for compounds in ground water ...
Ground water quality monitoring. The department shall conduct
ground water quality monitoring activities ...
Access for ground water monitoring. The department may request
landowners or operators to allow access for monitoring of ground
water and of soils ...
Pollution prevention criteria. The commissioner, in cooperation
with the department, North Dakota state university extension service,
and the North Dakota agricultural experiment station, may develop
pollution prevention criteria for areas utilized for mixing and
storing of agricultural chemicals at the retail and end use levels.
Wellhead protection program. The department in cooperation with
the state engineer and state geologist shall assist in implementing
a public water supply wellhead protection program ...
Rules. The department, with the approval of the commissioner and
the state engineer, shall adopt rules necessary for implementation
of this chapter.
- For a brief description of executive orders, see Relyea Harold. Presidential Directives: Background and Overview. CRS Report for Congress, Congressional Research Service, The Library of Congress, Updated April 23, 2007 at http://www.fas.org/irp/crs/98-611.pdf
- The judicial branch of government is the court system. It is comprised of trial courts (to determine the facts) and appellate
courts (to interpret
or clarify the Constitution, statutes, regulations and common law).
- For example,
Dakota Constitution, Article VI, sections 2 and 8 state "The
supreme court shall be the highest court of the state. It shall
have appellate jurisdiction . . ." and "The district court shall
have original jurisdiction of all causes ..."
- The court system
is our mechanism for resolving disputes (it is better than using force
or resorting to violence to resolve disputes).
is civilized war." Doug Nill, attorney and '81 NDSU graduate, BS
Ag Economics, quoted in AGWEEK , May 10, 2004, page 30.
-- state charges a person with a crime; penalty will be
either imprisonment or a fine. This course will NOT address criminal
- "A criminal
action is one prosecuted by the state as a party against a person
charged with a public offense for the punishment thereof." N.D.C.C.
-- Dispute between two parties (e.g., dispute a buyer and
a seller, dispute between a landowner and a tenant, dispute between
two neighbors); not a crime. Solution generally will be a court order
to compensate the injured party and/or to stop an illegal act .
- "As a general
rule compensation is the relief or remedy provided by the law
of this state for the violation of private rights and the means
of securing their observance. Specific and preventive relief may
be given in no cases other than those specified in this title."
- In a civil
lawsuit, the party who files the lawsuit (also stated as "commences
the action" or "brings the action") is the plaintiff; that is,
the party who is complaining that they have been injured or treated
wrong. The party being sued is the defendant; that is, the person
or persons who have to defend themselves against the accusations
being made by the plaintiff.
- A court case
is sometimes referred to as litigation, and the plaintiff and
defendant are called the litigants or litigating parties.
- The court
cases studied in this course are primarily civil cases; this course
devotes very little attention to criminal cases/criminal law.
- Courts also
decide whether there is a conflict among a regulation, statute,
and Constitution; if there is a conflict, the Constitution prevails
and the conflicting portion of the statute or regulations will
not be enforced.
- Excerpts from http://www.epa.gov/npdes/regulations/cafo_revisedrule.pdf
- "Congress passed the Federal Water Pollution Control Act (1972), also known as the Clean Water Act (CWA), to ‘‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters’’ (33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the NPDES permit program to authorize and regulate the discharge of pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
- "The CAFO industry organizations argued that the EPA exceeded its statutory authority by requiring all CAFOs to either apply for NPDES permits or demonstrate that they have no potential to discharge. The court agreed with the CAFO industry petitioners on this issue and therefore vacated the ‘‘duty to apply’’ provision of the 2003 CAFO rule.
- "The court found that the duty to apply, which the Agency had based on a presumption that most CAFOs have at least a potential to discharge, was invalid, because the CWA subjects only actual discharges to permitting requirements rather than potential discharges. The court acknowledged EPA’s policy considerations for seeking to impose a duty to apply but found that the Agency lacked statutory authority to do so."
- Civil lawsuits
are initiated in a trial court. The task is for the jury (or in some
cases, the judge) to listen to the evidence presented by the litigants,
decide what happened, and determine a solution to the dispute. The judge
oversees the trial process to assure all litigants are given an opportunity
to present their information and to assure the jury appropriately applies
the law to the facts of the case.
- An appellate court reviews the action of the trial court; a litigant will initiate an appeal
if the litigant feels the trial judge made a mistake in overseeing the
trial process or in interpreting and applying the law. The appellate
court does not determine the facts of the case (that has already been
done by the trial court); the appellate court focuses on whether the
law was correctly interpreted and applied during the trial process.
- Appellate court decisions/opinins serve as precedence for
later disputes with similar facts and questions; these decisions are
referred to as the common law. These decisions are
often clarifications or interpretations of the law, including the Constitution,
a statute, a regulation, a previous court decision, or a combination
- Although appellate
court decisions are primarily intended to interpret current law, there
are times when court decisions serve as an indicator of society's concept
of right and wrong, especially if the legislature has not clearly stated
a policy or direction. Thus judicial decisions can influence legislators
- Reading a court
opinion can sometimes be confusing because the justices have to
address several legal issues; this is especially difficult if the
reader is interested in only one of the legal concepts the court
addressed in making its decision. Therefore, as you read a court
case, there will be times when much of the opinion may not be of
interest to you. Focus on the part of the decision that applies
to your question but do not overlook the remainder of the opinion
to such an extent that you are unable to understand the overall
- In many cases,
the appellate court is asked to review the trial court's ruling
on a motion for summary judgment.
judgment is a procedure for the prompt and expeditious disposition
of a controversy without trial if either party is entitled to
judgment as a matter of law, if no dispute exists as to either
the material facts or the inferences to be drawn from undisputed
facts, or if resolving factual disputes would not alter the
v. Ford Motor Co., 2000 ND 31, 606 N.W.2d 881.
judge of the trial court concludes, based on the information
presented by the litigating parties, that one party will prevail
and there is no reason to continue the trial on that point,
the judge can issue a summary judgment on that point. It is not uncommon then for the party who lost on summary judgment at the trial to appeal to an appellate court to argue that the trial judge made an error and the trial should have been completed. It is this appeal of the summary judgment that is then being explained in the decision of the appellate court.
the question of granting a summary judgment may appear in many
of the court opinions we will read, you will often focus on
the part of the opinion that discusses the legal concept we
are studying at the time.
Please allow me to offer an opinion. Our nation, and to some extent the world, focuses much attention on the President and offer statements about what the President can do. Although this attention is warranted, it also can be misconstrued.
As explained in the previous sections, the President can do no more than Congress authorizes and the President must do as Congress mandates.
- The President can lobby Congress, just as you and I can (but obviously, the President will most likely receive more consideration than suggestions by you or me).
- The President can veto legislation that Congress has passed, but Congress can override a veto. For example, the Farm Bill in 2008 was enacted twice, vetoed by President Bush twice, and the vetoes were overridden by Congress twice. Guess what? Congress still prevails.
- The President can direct agencies of the executive branch to exercise their discretion and not fully implement Congressional mandates. This is based on the assumption that the language of the statute had room for interpretation. But that is where the judicial branch assumes a role. An individual, even you or me, can sue the agency and argue that the agency is not abiding by the law by not fulfilling the Congressional mandate. If the court agrees, the executive agency will need to change its practices. Guess what? The president does not always prevail.
- Congress also can respond to action or inaction of the executive branch by enacting another statute to clarify what Congress intended to accomplished with the first statute that the executive branch is not administering. Again, the executive branch (ie., the President) is limited as to what it can do.
President Nixon (and other presidents) occasionally think they can do more than the law authorizes them to do. President Nixon did not finish his term in office. Other presidents were effectively rendered powerless because Congress would not pay any attention to the presidents' suggestions. Guess what? Congress prevails.
Bottom line -- despite all the international attention paid to the office of the U.S. President, NEVER forget that it is Congress that sets the direction or policy. The media sometimes misleads us by giving all the credit or blame to the president. We need to understand the structure of the U.S. government and to follow current events close enough to understand who is doing what and who ultimately prevails. A presidential suggestion will only become law if a majority of Congress agrees. Without Congress' approval, no one's suggestions (including the president's suggestions) will ever become law.
Summary of Key Points
- The purpose of this page was to overview the U.S. legal system and to emphasize the type of law that is created by each branch of government (legislative branch enacts statutes, the executive branch promulgates regulations, and appellate courts within the judicial branch render legal opinions that collectively form the common law).
- A second emphasis was on describing the relationship among the three branches of goverment -- that is, the legislative branch debates and establishes policy, the executive branch executes or implements the policies set forth by the legislative branch, and the judicial branch interprets the Constitution, statutes, and regulations.
- The word "law" encompasses statutes, regulations, and the common law. HINT -- clarify your communication by stating whether you are describing a statute, a regulation or a court decision, rather than generally referring to "the law".
- A third point in this discussion is that the Constitution specifies what government is authorized to do and what government is prohibited from doing.
- Perhaps the most confusing parts of these materials are 1) the relationship among the Constitution, statutes, regulations and court decisions (because your earlier studies of US government may not have emphasized that point) and 2) the process by which government agencies in the executive branch promulgates regulations.
- This course focuses on concepts that generally arise as civil matters or civil court cases; criminal law is NOT the focus of this course.
Also see Overview of U.S. Government
The next page introduces how to research law.
August 25, 2010