Sistemul Juridic Din S.U.A

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Great American Court Cases

The most basic function of the American legal system is to maintain peace by resolving disputes.

Federal and state courts, tribunals, and administrative bodies do this by applying laws to casesbetween specific individuals or organizations.

The primary sources of applicable law are federal and state constitutions, statutes, andadministrative regulations. Constitutions establish the structure of government, define and limit

its power, and seek to protect individuals from unreasonable or unlawful exercises of that power.

Legislatures enact statutescriminal laws, for examplethat govern a wide variety of conduct.

Administrative bodies promulgate regulations to govern specific areas of business, such astelecommunications and securities.

In theory, courts apply these existing laws rather than creating new law. The legislatures and

administrative bodies, however, cannot always anticipate every possible set of circumstances, andthe laws do not clearly dictate a result in every case. Frequently, too, the law is intentionally

vague to give the courts flexibility to interpret it in ways which serve general public policiesrather than to accomplish specific results. There are, however, constitutional limits on how vague

a law may be. In general, it must fairly apprise individuals of behavior that it prohibits or

compels.

In practice, then, American courts often make law when they decide cases. Under the doctrine of

stare decisis, courts at the same or lower level in the judicial hierarchy must follow the firstcourt's interpretation of the law in subsequent cases with similar facts. Higher courts in the

judicial hierarchy may either accept the lower court's interpretation or reverse it by interpreting

the law differently. Courts in other states may rely on the first court's interpretation as persuasiveauthority concerning the application of similar laws in their states. This tradition of binding andpersuasive authority is a by-product of the American judicial system's origins in the common law

system of England.

Origins of the American Judicial System: StateJudicial Systems

When America declared its independence in 1776, the 13 original colonies had largely informal

judicial systems based loosely on the English system of common law. Common law is the body

of law that developed in English courts on a case-by-case basis. Under the common law, judgesplaced great reliance on decisions in prior cases with similar facts. Although state courts today

apply laws enacted by legislatures and administrative bodies, they continue the common lawtradition of case-by-case interpretation of these laws and reliance on prior judicial decisions.

As the United States expanded southward and westward, it acquired Mexican, Spanish, andFrench territories, which had legal systems based on the European civil law tradition. Under that

tradition, courts in Europe applied detailed civil codes that the legislatures had designed to


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resolve all potential disputes. Civil codes reflected the natural law concept that there are

unchanging, God-made laws that govern human behavior. Unlike in common law systems, civil

law courts were not supposed to interpret the law beyond what was provided in the civil codesthey simply resolved disputes by applying the appropriate portion of the code. While the English

common law tradition dominated the formation of American state legal systems, remnants of the

civil law tradition exist even today, most notably in Louisiana, which based its legal system onthe civil law of France.

Origins of the American Judicial System: FederalJudiciary

The federal judiciary was born in 1789 upon adoption of the U.S. Constitution, which vested the

judicial power of the United States in "one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish." The Constitution created a judicial systemthat contains elements of both the common and civil law traditions. The latter is evident in one of

the purposes expressed in the Constitution's preambleto "secure the Blessings of Liberty." The

Constitution, however, is subject to case-by-case interpretation by the U.S. Supreme Court, whichusually limits itself by the principle ofstare decisis.

Origins of the American Judicial System: Federalism

The existence of separate federal and state judicial systems in the United States is a hallmark of

federalism, which means these systems share authority to resolve legal disputes in their

geographic boundaries. Federal and state courts sometimes have concurrent jurisdiction to

resolve disputes arising from the same set of circumstances. For instance, federal and stateauthorities both took judicial action following the bombing of the Alfred P. Murrah Federal

Building in Oklahoma City in 1995. Federal and state courts occasionally have exclusivejurisdiction over certain areas of the law. State courts, for instance, typically have exclusivejurisdiction to handle child custody disputes, while federal courts exclusively handle bankruptcy

cases. The U.S. Constitution determines whether state and federal courts have concurrent or

exclusive jurisdiction over a particular issue.

Structure and Operation of the Courts: JudicialHierarchy

American state court systems are hierarchical. Most states have trial courts of general jurisdiction

where the judges preside over all types of cases, both civil and criminal. Most states also havespecial courts of limited jurisdiction that hear only certain kinds of casesdomestic relations and

family court, juvenile court, and courts for the administration of wills are typical examples. Therealso are state courts of inferior jurisdiction, such as justices of the peace, small claims court, and

traffic court, that handle petty matters. Appeals from all lower courts usually go first to an

intermediate appellate court, often called the court of appeals, and then to the state's highestcourt, often called the supreme court. When a case involves application of the U.S. Constitution


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or federal law, the parties sometimes may appeal from the state's highest court to the U.S.

Supreme Court.

The federal judiciary is similarly hierarchical. Federal district courts handle trials in civil and

criminal cases, and appeals from some federal administrative agencies. The federal judiciary also

has special courts of limited jurisdiction, such as the Court of Federal Claims, the Court ofInternational Trade, and the Tax Court. Appeals from federal district courts go to one of 11

numbered circuit courts of appeals covering different geographical regions, or to the District ofColumbia Court of Appeals. Appeals from the Court of Federal Claims and the Court of

International Trade go to the Federal Court of Appeals. Parties may appeal a case from the

appellate courts to the U.S. Supreme Court.

Structure and Operation of the Courts: Criminal andCivil Procedure

The progress of a case through the court system is governed by rules of procedure. There areseparate rules of civil and criminal procedure because criminal cases require specialconstitutional safeguards for the accused. The following illustration explains the procedure in a

civil case, which generally is a dispute between private individuals. Some of the notable

differences between civil and criminal procedures are noted in this discussion.

Rules of civil procedure define and limit the roles of the various persons in a case. The party who

brings a case is called the plaintiff, and the person being sued is the defendant. (In criminal casesthere is a prosecutor instead of a plaintiff.) As the American legal system is adversarial, the

parties are represented by lawyers who must zealously protect their clients' interests. A jury

typically hears the evidence and determines the outcome under the substantive law as instructedby the judge. The judge acts as a referee to enforce the rules and explain the applicable law.

While the federal and state courts each have their own rules of civil procedure, the federalprocess is fairly representative. A federal case begins when a plaintiff files a complaint andsummons in a federal district court. The complaint explains the nature of the plaintiff's claim

against the defendant. The summons notifies the defendant to appear and to answer the complaint

by either admitting or denying the plaintiff's allegations. If the defendant fails to appear andanswer, the court may enter a default judgment against the defendant and order the relief sought

by the plaintiff. If the defendant appears, he typically files an answer that denies the plaintiff's

allegations. The plaintiff's complaint, the defendant's answer, and any reply by the plaintiff are

called the pleadings.

The defendant next may file a motion to dismiss, which argues that even if the plaintiff proveseverything in his pleadings, the law does not provide any relief. If the judge grants this motion,

she dismisses the case. If not, the parties proceed to the discovery phase.

The purpose of discovery is to help the parties identify and narrow the issues for trial, and to

require the parties to disclose all of their evidence. The parties begin discovery by making

mandatory disclosures containing basic information, such as the identity of persons anddocuments with evidence related to the pleadings. The parties then answer interrogatories and


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take depositions. Interrogatories are written questions that a party must answer in writing under

an oath that acknowledges a penalty for perjury. Depositions are oral, transcribed proceedings by

which a prospective witness, who also is under oath, answers verbal questions posed by thelawyers. Interrogatory answers and deposition transcripts may be used at trial as evidence or to

impeach a witness's testimony if she contradicts what she said during discovery.

After discovery, the defendant may make a motion for summary judgment, which argues that

even with everything that discovery has revealed, the plaintiff is unable to prove a violation oflaw warranting relief. If the judge grants this motion, she dismisses the case. Otherwise the case

proceeds to trial.

The trial begins when the judge and parties pick a jury. (In civil cases for which there was no

right to a jury trial upon adoption of the U.S. Constitution, or when the parties do not want a jury

trial, the parties have a bench trial before a judge without a jury.) In some cases a grand jury,

consisting usually of 23 members, is called to determine whether grounds exist for a criminalproceeding to be initiated by the state. To pick the jury, the judge or lawyers pose questions to

prospective jurors. After hearing the answers, the parties may dismiss a set number of prospective

jurors for any reason, although they may not discriminate unlawfully. The parties further maydismiss an unlimited number of jurors for good cause, such as bias in the prospective juror's

responses.

Once they have selected 12 jurors, the lawyers present opening statements, which give the jury a

road-map of what the evidence will prove. The plaintiff then presents his case by the testimony of

witnesses and the admission of documents into the record of evidence. The presentation isgoverned by rules of evidence, which the judge enforces to determine what the jury can and

cannot hear. The rules of evidence are supposed to give the jury only the most reliable evidence.

The defendant is allowed to cross-examine the plaintiff's witnesses to challenge their accuracy,

truthfulness, and bias. The defendant presents his evidence after the plaintiff, who then maycross-examine the defendant's witnesses.

At the close of the evidence, each party may ask the judge to enter judgment in his favor on theground that a reasonable jury could only reach one verdict under the evidence presented. If the

judge denies this motion, she instructs the jury about the applicable substantive law, the lawyers

make closing arguments to explain the result their clients seek, and the jury retires to deliberateand reach a verdict. After the jury (or the judge in a bench trial) delivers its verdict, each party

may ask the judge to reverse the verdict or order a new trial based upon errors the judge made

applying the rules of procedure, rules of evidence, or substantive law. If these motions are denied,

the parties may file a notice of appeal to the proper circuit court of appeals. Notably, if a person isfound not guilty in a criminal proceeding that is not declared a mistrial, that person cannot be

tried again for the same crime. This concept of double jeopardy has its origin in the Fifth

Amendment, which prevents people from being placed at risk of conviction more than once for asingle offense.

Cases in the courts of appeals are heard by a panel of three judges. The parties file briefs thatexplain the errors they think the trial judge made under the rules of procedure, rules of evidence,

or substantive law. The court of appeals does not hear the evidence anew, but relies on the

recordthe trial testimony and documents entered into evidence before the district court. The


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court also might hear oral argument, during which the parties' lawyers may respond to questions

posed by the judges on the panel. The judges then study the record, briefs, and oral argument,

discuss the case among themselves, vote on the result, and issue a decision based on the majorityvote.

Dissatisfied parties may appeal to the U.S. Supreme Court, which is composed of nine justices.The procedure is similar to that in the courts of appeal, with one major exception: a party first

must file a petition for a writ ofcertiorari to convince the Supreme Court that the case isimportant enough to warrant consideration. The Supreme Court grants the writby a vote of four

or more justicesfor only approximately five percent of the thousands of petitions it receives

each year. These lucky few file briefs and engage in oral argument as they did before the court of

appeals. After the justices vote, one of the justices voting in the majority writes an opinionexplaining the Court's decision. Dissatisfied parties have no further avenue of appeal from this

court of last resort.

Structure and Operation of the Courts: Alternative

Dispute Resolution

The procedure for pursuing a case, especially a civil case, from trial through appeal is time-

consuming. It can take one or more years to get a verdict in the trial court, and five or more yearsfor an appeal to the court of appeals and the Supreme Court. The legal fees and other costs can

amount to hundreds of thousands or millions of dollars. The vast majority of civil cases thus

settle before going to trial, which means the parties resolve their dispute by agreement. Mostcriminal cases also settle, a process called plea-bargaining.

Efforts to reduce costs in civil cases have popularized an area of legal procedure calledalternative dispute resolution, or ADR. Arbitration, the best known form of ADR, is an informal,

abbreviated trial where one or more neutral arbitrators hears and decides the case like a judge and

jury. Conciliation, a less common form of ADR, involves submission of the dispute to a neutral

third party for her investigation and recommendation. With mediation the parties try to negotiatea resolution with the assistance and guidance of a neutral mediator.

Today many contracts include a clause that requires parties to use ADR to resolve theirdisagreements. Whether or not they have a contract, many parties voluntarily pursue ADR before

going to court. State courts increasingly require parties in certain types of cases to try arbitration

or mediation before proceeding to trial. The American Arbitration Association and other

organizations support these efforts by designing ADR systems and procedures.

Types of Law

In the United States, where most courts hear cases concerning all areas of law, categorizing the

laws is largely arbitrary. InAn Introduction to the Legal System of the United States, Professor E.

Allan Farnsworth suggested a useful distinction between public and private law. Public lawgenerally concerns disputes between the government and individuals. Private law concerns

disputes between private individuals.


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Types of Law: Public Law

Public law, as described by Professor Farnsworth, includes constitutional, criminal, traderegulation, labor, and tax law. Constitutional law is embodied in the decisions of the U.S.

Supreme Court that interpret the federal Constitution. Many of these cases concern whether

conduct by the legislative or executive branches of the federal government violate constitutionaldefinitions or limitations on their powers. Under the "political question" doctrine, however, the

Supreme Court will decline to decide such a case if the Constitution reserves the issue for the

legislative or executive branch without judicial interference.

A large majority of constitutional law cases concern the protection of individual rights from

unlawful federal conduct. The Bill of Rights, which comprises the first ten amendments to the

Constitution, is the primary source of these rights. For example, the First Amendment protects thefreedom of speech, while the Fourth Amendment protects the right to be free from unreasonable

search and seizure. The Constitution also protects individual rights from unlawful state conduct.

The most important source of this protection is the Fourteenth Amendment, which contains the

Due Process and Equal Protection Clauses. By interpretation of these clauses, the U.S. SupremeCourt has applied the rights and protections found in the Bill of Rights to state conduct.

Criminal law mostly appears in state penal codes. These codes, while largely based on the

common law of England, reflect an effort to arrive at uniform, reliable definitions of crimes. The

codes define everything from felonies, such as murder and rape, to misdemeanors and pettyoffenses. There also are federal sources of criminal law, most notably relating to interstate

conduct, such as drug trafficking and fraudulent use of the mails. Another important source of

federal criminal law is the statute that protects civil rights, such as the right to be free from

discrimination on the basis of race, color, or creed. Criminal law cases also can involve issues ofconstitutional law, such as the rights of the accused to remain silent and to be represented by an

attorney.

Trade regulation includes antitrust law, which seeks to prevent monopolies and other restraints of

trade under America's system of free enterprise. It also includes laws designed to prevent unfair

competition among businesses. Labor law protects the well-being of employees and the rightsand duties of labor unions. Tax law primarily concerns the federal income tax.

Types of Law: Private Law

Private law, often referred to as civil law, includes tort, contract, family, commercial, and

property law. States are the primary source of private law. Tort law is a system of providing

compensation between individuals for private wrongs, such as battery and defamation. Theenforcement of promises or obligations between individuals is the subject of contract law. Family

law deals with the relationships between husband and wife or parent and child: marriage and

divorce; spousal abuse and support; and child custody, abuse, support, and adoption. Commercial

law, derived primarily from the Uniform Commercial Code, governs the sale and lease of goods.Property law governs transactions in real estate.


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The Appointment of Judges

The process for appointing state judges varies from state to state. Most state trial judges areelected by popular vote or by the state legislature. The supreme court judges in most states are

appointed for a fixed term by the governor, and then periodically stand unopposed for reelection

based on their records. In some states the judges of the highest court are elected by popular vote.State judges usually serve for a fixed term of years or for life, and can be removed only for gross

misconduct by formal proceedings.

Federal judges are appointed by the president with the advice and consent of the Senate. This

process typically results in the appointment of judges who are members of the president's

political party. If the Senate judiciary committee is controlled by the president's opposition party,

the confirmation process can be hotly contested. Federal judges are appointed for life, and can beremoved only by impeachment and conviction by Congress.

The Role of JudgesState and federal judges perform various important roles in the American legal system. Trial

judges referee cases under the rules of procedure and evidence. The trial judge also instructs thejury concerning the substantive law that is applicable to the case. In bench trials, the judge

determines the facts, law, and result without a jury. The role of appellate judges is to review the

record of evidence before the trial court, decide the applicable substantive law, and either affirm

or reverse the result below. In doing so, the appellate judge may announce principles of law forapplication by trial judges in future cases.

Limitations on Judicial Power

InMarbury v. Madison (1803), the Supreme Court said "[i]t is emphatically the province and

duty of the judicial department to say what the law is." Judicial power, however, is not unlimited.

The U.S. Constitution is the primary source for limitations on federal judicial power. TheConstitution constrains federal courts to hear only "cases and controversies," which means actual

cases rather than hypothetical situations or stale disputes. Under the political question doctrine,

federal courts will not address issues reserved to the legislative or executive branches of thefederal government. Congressional authority under the Constitution also limits judicial power.

Congress may impeach and convict federal judges for "Treason, Bribery, or other high Crimes

and Misdemeanors." If Congress is dissatisfied with a court's interpretation of a statute, it may

pass legislation to correct the interpretation, as long as it acts within the constitutional limitations

on its own power.

Similarly, state judicial power is restricted by state constitutions, the process for selection andremoval of state judges, and the ultimate supremacy of the U.S. Constitution over both state and

federal statutes and case law.


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The U.S. Legal System

In the United States, laws are made at the federal and state levels. Laws adopted by legislative

bodies - Congress and state legislatures - are called "statutes."

The federal and state courts enforce statutes. They also create law.

These materials describe some of the basic concepts of our legal system, and the roles played by

legislatures and courts.

FEDERAL STATUTES

The U.S. Constitution gives Congress to power to enact federal laws ("statutes") on certain subjects.

The Copyright Act (discussed extensively in theCopyright Law Summary) is one example of astatute adopted by Congress. Congress's power to enact the Copyright Act stems from Article I,

Section 8, of the Constitution, which authorizes Congress to establish laws giving "authors and

inventors the exclusive right to their respective writings and discoveries" to encourage progressin the arts and sciences.

According to the Constitution, all powers not delegated to Congress are reserved to the states.The "commerce clause" of the Constitution (which concerns interstate commerce) is generally

viewed as giving Congress broad power to regulate matters affecting interstate commerce -

trademarks used in interstate commerce, for example.

Federal law-making begins when a member of the Senate or the House of Representatives

introduces a bill. Most bills are referred to standing committees (for example, the HouseCommittee on the Judiciary) and to subcommittees for study. Bills are later brought before the

Senate or House for debate and vote. Differences between the Senate and House versions of a bill

are resolved in joint conference committees.

After the House and Senate have approved a uniform version of the bill, the bill is sent to the

President. If the President signs the bill, it becomes law. If the President vetoes the bill, itbecomes law only if the Senate and House override the veto. This requires the consent of two-

thirds of the members of the Senate and House.

STATE STATUTES

State legislatures can pass laws on matters for which they share jurisdiction with Congress. Trademark

law is an example of a shared jurisdiction. In other matters, the federal government has taken exclusive

jurisdiction. Copyright is an example: The Copyright Act prohibits the states from granting copyright-like

protection.

States can also pass laws on matters in which the Constitution does not grant jurisdiction to thefederal government.
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State law-making occurs through a process that is similar to the federal process.

THE COURTS

The courts enforce statutes and interpret them. They also invalidate unconstitutional statutes, and make

law in areas not covered by statutes. Here are some examples of the four main roles played by our

courts:

Enforcement The Copyright Act gives a copyright owner the exclusive right to reproduce theowner's work. A copyright infringement suit is an example of court enforcement of a statute.

(Copyright infringement is discussed in "Infringement," in theCopyright Law Summary)

Interpretation .According to the Copyright Act, the copyright in a work created by an employeewithin the scope of his or her employment is owned by the employer. The Copyright Act does

not define the term "employee." The Supreme Court case that defines the term is an example of

court interpretation of a statute. (That case is discussed in the "The Work Made for Hire Rule" in

theOwnership of Copyrights Summary)

Invalidation . The courts invalidate unconstitutional laws. Unconstitutional laws are laws thatconflict with provisions of the Constitution. The Constitution is the supreme law of the UnitedStates. Many "constitutionality" cases involve claims that a law violates the Constitution's Bill of

Rights (the first ten amendments). In Roe v. Wade , the Supreme Court invalidated a state

statute restricting women's access to abortion. According to the Court, the statute violated a

pregnant woman's constitutional right of privacy.

Making Law . The courts create the law for "common law" subject areas. Common law coversareas not covered by statutes. In many states, for example, individuals' rights of privacy and

publicity are protected under common law rather than under statutory laws.

Types of Courts

There are several types of courts. The federal and state court systems consist of two levels of courts:

Trial courts and appellate courts. Cases are tried in trial courts. Appellate courts review the decisions ofthe trial courts. (Appellate and trial courts are discussed in "Civil Lawsuits," later in this summary.)

The federal court system is divided into 13 judicial circuits. Eleven of the circuits are numbered.

Each of the numbered circuits contains more than one state. The Ninth Circuit, for example,

covers California, Oregon, Washington, Idaho, Nevada, Arizona, Alaska, and Hawaii. The 12thand 13th circuits are the District of Columbia Circuit and the Federal Circuit. The Federal Circuit

handles appeals in patent cases and Claims Court cases.

Each federal circuit has one appellate court. These courts are known as Courts of Appeals or

Circuit Courts. The Supreme Court reviews the decisions of the Courts of Appeals.

Each federal circuit is divided into judicial districts. A district can be as small as one city or as

large as an entire state. The trial courts are known as the United States District Courts.

Jurisdiction

The federal courts have jurisdiction over cases involving federal statutes (the Copyright Act, for

example) and other "federal questions." They also have jurisdiction over cases in which the party
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filing the suit and the party being sued reside in different states. This type of federal jurisdiction

is known as "diversity" jurisdiction.

Other types of cases must be brought in state court.

Civil and Criminal Cases

A criminal case is brought by the federal government or a state to prosecute a defendant (the

party sued) for violations of the government's criminal laws. Murder and burglary are examples

of violations of criminal laws. If the defendant in a criminal case is found guilty by the jury, he orshe is sentenced by the court to serve a jail sentence or pay a fine as punishment for the crime.

A civil case is a case brought by one party (the "plaintiff") against another party (the "defendant")

to resolve a legal dispute involving rights based on statutory law or common law. A copyrightinfringement case is an example of a civil case involving statutory law. A suit seeking damages

for a writer's breach of a contract (in which the writer promised to create a script for a movie but

failed to do so) is an example of a civil case involving common law rights. (Breach of contract isdiscussed in "What Is a Contract?," theContracts Law Summary)

While certain violations of the Copyright Act and the Lanham Act (the federal trademark statute)are criminal violations, multimedia developers and publishers will be concerned primarily with

civil cases.

Civil Lawsuits

There are several stages in civil lawsuits, from initiation to trial and then on to stages of appeal.We'll discuss these stages in this section.

Initiation

A civil lawsuit is initiated when the plaintiff files a "complaint" against the defendant allegingthat the defendant has wronged the plaintiff in some way recognized by the law. In most civil

lawsuits, the plaintiff asks the court to award the plaintiff "damages" (a remedy for the

defendant's wrongdoing - usually money) or to order the defendant to do something.

The defendant responds to the allegations in the complaint by filing an "answer" (a document in

which the defendant admits or denies the complaint's allegations and states defenses). The

defendant can also file a "counterclaim" against the plaintiff (allegations that the plaintiff has

wronged the defendant).

Trial

If the parties do not "settle" the case (reach their own agreement on how to resolve the dispute),the case eventually goes to trial. In most types of civil cases, the Constitution gives the parties a

right to a jury trial. The role of the jury is to decide questions of fact. However, in some complex

cases, the parties choose to dispense with the jury and have the case decided by the judge.
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Appeal

If the losing party in a civil lawsuit is not satisfied with the decision of the trial court, the losing

party can appeal the case to the appropriate appellate court.

In the federal court system, the appeal generally must be filed with the Court of Appeals for thejudicial circuit in which the trial was held. A case tried in the United States District Court for the

Northern District of California, for example, must be appealed to the Court of Appeals for theNinth Circuit.

An appellate court's job in reviewing a trial court's decision is to look for "mistakes of law" made

by the trial court. Appellate courts do not "second guess" factual issues decided by trial courts. In

our legal system, factual issues are supposed to be resolved by the jury, not by the appellate

court. So long as there is adequate factual evidence to support the verdict, an appellate court willnot reverse a trial court's decision or "remand" the case (send it back to the trial court for retrial)

unless they find that the trial court made a "mistake of law."

Filing an appeal is probably a waste of money unless a losing party can reasonably hope to

convince the appellate judges that there is insufficient evidence to support the trial court's

decision, or that the trial court misapplied the law.

Example: Plaintiff's lawsuit alleges that Defendant infringed the copyright on Plaintiff's song by

copying the melody of the song. The jury found that Defendant did not infringe Plaintiff'scopyright. If the jury reached its decision after being told by the judge that a song's melody is not

protected by copyright (a mistake in the applicable law, copyright law), Plaintiff has a good basis

for appeal. However, if the jury reached its decision after listening to Defendant's song and

concluding that the melody of Defendant's song is not similar to the melody of Plaintiff's song,

Plaintiff does not have a strong basis for appeal. (Whether or not the songs have similar melodiesis a factual determination.)

Appellate courts generally issue written opinions explaining how they reached their conclusions

on whether to affirm (uphold), reverse, or remand a case. These opinions are important parts of

the development of the law because our legal system is based on "precedent" (reliance onpreviously decided cases). (The role of precedent is discussed in "Precedent," later in this

summary.)

Supreme Court Review

There are two ways to get a case reviewed by the U.S. Supreme Court: by appeal and bycertiorari . The losers in certain types of cases - for example, cases involving claims that state

statutes are unconstitutional - have a right to appeal to the Supreme Court.

For most cases, though, there is no right of appeal to the Supreme Court. However, a party who

has lost a case at the federal Court of Appeals level can file a petition for certiorari with the

Supreme Court. A petition for certiorari is a document explaining why the Supreme Court should


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review a case. If the Supreme Court grants certiorari , the appeal proceeds. If the Court denies it,

the Court of Appeals' decision stands.

Thousands of petitions for certiorari are filed each year and most are denied. The Supreme Court

is likely to grant certiorari on a case only if the case involves a matter of national interest or the

Court believes that it must decide the case to resolve conflicts among the Circuit Courts andcreate uniformity in federal law.

Precedent

An appellate court's decision on an issue is binding on lower courts in the appellate court's

jurisdiction. Thus, an appellate court's decisions are "precedent" that the lower courts in the

appellate court's jurisdiction must follow (apply).

Example: In Effects Associates, Inc. v. Cohen , the United States Court of Appeals for the Ninth

Circuit held that the grant of a nonexclusive copyright license can be implied from the copyright

owner's conduct. This decision is binding on the federal district courts located in the NinthCircuit. Those courts are not free to decide that a nonexclusive copyright license cannot be

implied from conduct.

A lower court's decision is not binding on a higher court. In fact, appellate courts frequently

reverse decisions made by trial courts to correct the trial courts' "mistakes of law."

Because the United States Supreme Court is the "highest court in the land," the Supreme Court's

decisions are binding on all courts in the United States.

Example: In Community for Creative Nonviolence v. Reid , the Supreme Court decided how to

apply the Copyright Act's "work made for hire" rule to works created by independent contractors.That decision is binding on all courts in the United States. (Work made for hire is discussed in"The Work Made for Hire Rule" in theOwnership of Copyrights Summary)

A court's decision may "be persuasive" outside its region. For a decision to "be persuasive"means that other courts, while not compelled to follow it, choose to follow it. For example, if the

Court of Appeals for the Eleventh Circuit has never decided whether a nonexclusive copyright

license can be implied from the copyright owner's conduct but the Ninth Circuit has, the EleventhCircuit may reach the same conclusion as the Ninth Circuit when it decides that issue because it

believes that the Ninth Circuit's decision was correct.

Earlier court decisions are generally "followed" by the deciding court in all later cases involvingthe same issue.

For example, if the Ninth Circuit decides a case that involves the same legal issues that were

involved in a previous case, it is likely to decide those issues as it did in the previous case.

The reliance that our courts put on previously decided cases in deciding new cases is known as

stare decisis . That is Latin for "let the decision stand." The doctrine of stare decisis does not
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prevent a court from "overruling" its own previously decided cases. However, stare decisis

discourages rapid and radical changes in the law. As Supreme Court Justice William O. Douglas

once wrote in the Columbia Law Review , "stare decisis provides some moorings so that menmay trade and arrange their affairs with confidence....It is the strong tie which the future has to

the past."

The doctrine of stare decisis is the reason that an attorney performs legal research hoping to find

cases supporting the attorney's position on a legal issue.

FINDING THE LAW

Because law is made by the courts on a precedent basis following the doctrine of stare decisis , and also

made by Congress and the state legislatures, knowing the law on a given topic generally requires a

review of both statutory law and case law.

Statutes

Federal and state statutory laws can be found by consulting published "codifications" of laws in law

libraries maintained by law schools, law firms, courts, and bar associations. To find a federal law such asthe Copyright Act, for example, you would look in the United States Code, which is divided into "titles."

Federal and state statutory laws can also be obtained "on-line" from Westlaw or Lexis, two computerized

legal research services.

Recently adopted laws may not be included in the published codifications of statutes. While thepublishers of these codifications add new material regularly (in "pocket parts" inserted at the

back of appropriate volumes), even the pocket parts may not include laws adopted in the most

recent session of the legislature.

Court Decisions

Court decisions (also known as "case law") can be found in publications called "reporters." For example,

decisions of the United States Supreme Court are published in the United States Reports , the Supreme

Court Reporter , and the Lawyers Edition (three different "reporters" from three different publishers).

These decisions are also available from computerized services such as Westlaw and Lexis, whichprovide on-line research assistance for locating cases on desired topics. "Digests" that divide

decide cases into topics are also helpful for locating relevant cases. Other research resources helplawyers determine whether cases in which they are interested have been reversed by a higher

court or overruled (modified by a later decision of the same court).

Various publishing companies publish "annotated" statutory codes, which bring statutes andrelevant court decisions together in one source. West Publishing Company, for example,

publishes the United States Code Annotated , which lists the court decisions enforcing or

interpreting each provision of the United States Code.


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ARBITRATION

The parties to a dispute sometimes choose to resolve a dispute through arbitration rather than

through court litigation. In arbitration, a dispute is resolved by a neutral arbitrator rather than by a

judge or jury.

Arbitration is generally quicker and cheaper than court litigation. Specially qualified arbitrators

are often used to resolve technical disputes.

Both parties must agree to submit their dispute to arbitration. Many contracts require that disputesbe resolved through arbitration rather than through litigation.

In the United States, many arbitration cases are handled by arbitrators approved by the American

Arbitration Association, which has offices in a number of cities. Arbitration is similar to a trial inthat both parties present their cases to the arbitrator, who renders a decision. Appeals of

arbitrators' decisions are generally possible only if the arbitration was conducted improperly.

GOVERNMENT OFFICES AND AGENCIES

Government offices and agencies play an important role in our legal system. The CopyrightOffice and the U.S. Patent and Trademark Office are the key federal government offices for

multimedia developers and publishers. (The U.S. Patent and Trademark Office is discussed in

"Patent Law" and "Trademark Law" in thePatent, Trademark, and Trade Secret Law Summary.)

Ref.3

The American Legal System

Sources of Law

Constitutional Law is based on a formal document that defines broad powers. Federal constitutional

law originates from the US constitution. State constitutional law originates from the individual state

constitutions.

Statutes and Ordinances are legislation passed on the federal, state, or local levels.
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Common Law is based on the concept of precedence - on how the courts have interpreted the law.

Under common law, the facts of a particular case are determined and compared to previous cases

having similar facts in order to reach a decision by analogy. Common law applies mostly at the state

level. It originated in the 13 th century when royal judges began recording their decisions and the

reasoning behind the decisions.

Administrative Law - federal, state, and local level. Administrative law is made by administrative

agencies that define the intent of the legislative body that passed the law.

The sources of law have both vertical and horizontal dimensions. Vertical dimensions include federal

authority, state authority, and concurrent authority. Federalism refers to this form of government, in

which there is national and local authority. Federal authority covers laws related to patents, pensions

and profit sharing, and labor issues. State authority covers business association, contracts, and trade

secrets. Concurrent authority covers security law, tax law, and employment law. Note that

employment law refers to non-union relationships; labor law refers to union relationships.

The horizontal dimension is related to the separation of power between the executive branch, which

creates administrative law, the legislative branch, which creates statutes, and the judicial branch,

which creates common law. The judicial system in the US has a pyramid structure consisting of fewer

higher level courts and more lower level courts:

-- Supreme Court --

--------- Appellate Courts ---------

-------------------- Trial Courts ---------------------

Actually, there are two pyramid structures - one for federal courts and one for state courts. State

courts may use different terminology; for example, trial courts may be called courts of common plea,

appellate courts may be called superior courts or commonwealth courts.

Classifications of Law

Substantive law vs. procedural law: Substantive law creates, defines, and regulates legal rights and

obligations. Procedural law defines the rules that are used to enforce substantive law.


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Common law vs. statutory law: Common law is defined by judges. Statutory law is passed by

legislatures. For example, the Securities Act of 1933 is statutory law.

Criminal law vs. civil law: Criminal law is between private parties and society. Civil law is between

private parties only.

Jurisdiction

Jurisdiction is the power of a court to hear a particular case. In order for a court to have jurisdiction, it

must have both subject matter jurisdiction (the power to hear the type of claim being asserted) and

personal jurisdiction (power over the person).

Subject Matter Jurisdiction

Article III of the US constitution states that federal courts have only certain types of subject matter

jurisdiction. To satisfy subject matter jurisdiction, a federal court must have either:

1. Federal question jurisdiction - federal courts have federal question jurisdiction in cases involving

the federal constitution, federal statutes, or federal treaties.

or

2. Diversity jurisdiction - diversity jurisdiction requires both a) $75,000 or more at issue, and b) the

parties must be residents of different states. Diversity jurisdiction applies for example, to a case in

which a traveler passing through a different state from his/her home state is accused of a serious

offense, and in which the plaintiff, attorneys, and judge may all be close friends.

or

3. suit by or against the US government,


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or

4. Miscellaneous - certain types of cases such as those related to patents, bankruptcy, admirality

(maritime cases), trademarks and copyrights, etc.

Items 1) and 2) can be tried in either state or federal courts (concurrent state/federal jurisdiction).

Items 3) and 4) may be heard only by federal courts.

Personal Jurisdiction

Types of personal jurisdiction:

1. in personam - court has power over a particular person - in personam applies if minimum contact is

established. For non-residents of a state, a state court may still have jurisdiction if the person travels

regularly to the state on business or has a post office box in the state. Each state has its own

definition of what constitutes doing business in the state, as determined by common law.

2. in Rem - a court has power if a particular piece of property is in the state.

3. consent - when a contract specifies in which state any disputes are settled. The contract canspecify a third state in which neither party does business.

Just because a case is heard by a particular state court does not mean that that state's laws apply.

The states whose laws are used can be specified in the contract. One state's court can hear a case

under another state's laws.

Lifecycle of a Lawsuit

In the beginning phase of a lawsuit, there is a complaint, followed by the defendant's answer in which

he or she tries to counter everything in the claim. The defendant then may file a counterclaim.

Counterclaims are lawsuits within a lawsuit in which the defendant files a claim against the plaintiff.

There then may be a preliminary motion, of which the outcome can be dismissal due to no legal claim


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based on reading the complaint, or a summary judgement in which a decision can be based on the

facts of the case that are not in dispute.

The middle phase of a lawsuit is the discovery phase, in which each side attempts to determine how

strong their case is. The discovery phase consists of interrogatories, depositions, and admissions. By

this point, most cases are settled.

The end phase of a lawsuit is the trial, beginning with a pre-trial conference in which the parties

attempt to settle in front of a judge without going to court. The trial then proceeds with the evidence

and then a judgement and possibly a post-judgement. The post-judgement may be that a new trial is

necessary, such as in cases of mistrial.

The defendant usually has the right to one appeal within a certain period of time. An appeal is filed

with the appellate court, there are briefs, oral arguments, and then a decision.

The judgement is enforced by first obtaining an execution that freezes the defendant's assets. The

defendant is served and the assets are levied. The defendant, however, may choose to file for

bankruptcy protection, in which case all creditors are stopped, including court judgements.

Remedies

There are two types of remedies: legal and equitable. Legal remedies are money-based and seek to

financially compensate one for the damage that has occurred. Equitable remedies require a specific

performance. Examples of equitable remedies are injunctions, restitution, and reformation. In cases

where damages are difficult to quantify, equitable remedies may be more appropriate.

Legal Case Study

When attempting to understand how courts interpret the law, it is worthwhile to study past cases of

similar legal issues. Past legal cases provide the opportunity to understand the law by studying well-

argued positions from both sides. When studying a case, the following points should be identified:

1. Facts. One should identify which facts are important and which are not.

2. Issue. One should isolate the specific legal issue relevant to the case.

3. Court holding (ruling)


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4. Reasoning (why the court decided as it did).

Sistemul Juridic Din S.U.A

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