Sources of Laws in the United States
Introduction
The American Law is a collection of rules and legislations that govern the United States of America. The sources of US laws are divided into Primary and Secondary sources.
Constitutional/ Common Laws
This is the supreme source of laws and legislation not only in the USA but also in almost every state across the globe. A constitution is a legal system set of laws found and applied in the courts of law in the United States. These Laws are made by the congress, whereby the congressmen take proposed laws known as the bill to the Congress. The bill is discussed, debated and the necessary changes made. Over time though, various amendments may also be made especially where laws seem ambiguous or rigid. Such changes have been experienced in recent years, especially for the past decade.
Apart from the national constitutional laws, there are the state laws that only apply in the specific states where they have been made by the local tribunals for example the states.
Precedents
A precedent is a ruling made by a judge in a court of law, that is similar to a prior ruling that had been made before in a case similar to the one at hand. Though the two happened in two different settings of place and time, the judge is obliged to carry out the same kind of ruling to the new case at hand. This is especially exercised in the past decade, with the numerous political changes and incidents that have taken place, for example, the September 11th, 2001 Al Qaeda attack. An example is the Terrorism relief act of 2001. This is where the US Government offered to offer relief food, clothes, and basic assistance to the citizens of Afghanistan following the clash between the US Army troops and the Al Qaeda militia. This is because the armies and the militia attacks had led to the displacement of Afghan citizens, death of breadwinners and general chaos across major cities and residential areas in the country. This led to court ruling that the Government offer relief to the displaced and the affected in the camps.
A second example of a precedent is the Air Transportation Safety and System Stabilization Act. Precedents can at times be criticized and contradicting especially due to the changes in time and forms of governance. For this reason, most precedents have been amended by congress (Cummins 46).
Stare Decisis
This is a Latin phrase that means “standing by decision”. This applies where a court of law has to stand by its decision concerning a given issue, and this especially applies in precedents too. A court’s undeterred work to maintain the policy and that way, it ends up being a lawyer. Stare Decisis applies when a court of higher rank passes a ruling and all the lower ranks are obliged to follow suit.
Ordinance
These are local laws otherwise referred to as by-laws, which normally apply only in the specific administrative area of the specific law enhancer, for example, municipal laws, town laws, city council laws, etc. These laws, unlike the national constitutional laws, are set by the local authority, and only apply in the specific places of administration for example senates.
Ordinances however are a tricky source of law in the United States because what may be termed legal in one state may be a criminal offense in another. The constitution however has been trying to maintain all the ordinances to almost equilibrium through revision and consequent amendment of the controversial ones. This makes it easier for people traveling to other states to abide by the law.
Rules of courts
These are the rules and laws that the court promulgates. These rules govern the practices before it, as well as the criminal and civil processes. Court rules are borrowed and modified from the statutory mandates, and for this reason, they do not conflict with them. These rules are usually drafted and directed by the highest-ranked court of law, which is the Judicial Conference. They are then forwarded to Congress, which then nullifies or approves the bill into a Law (Bassiouni 98).
Regulation
These are also referred to as the Administrative Laws and are enforced across the USA by the states, federal and local governmental units. These laws are subdivided into the regulatory and implementation agencies in every jurisdiction unit such as the state.
Other secondary sources of law in the United States include Casebooks, Law Reviews, American Jurisprudence, and Corpus Juris Secundum.
How the sources of law affect the US business climate
As discussed above, the United States has five major sources of laws and regulations that govern the country. Although they are all equal, some of the sources of law in the USA are easily applicable compared to others. For example, constitutional laws are easily applicable as opposed to precedents. The reason is that the Constitution is the supreme source of laws and legislations, and all other sources of law must be approved by the constitution as valid and acceptable at the judicial front. All these law sources, however, have various impacts on business in the USA. These impacts are usually felt when these laws are amended (Bassiouni 32).
Constitutional Laws are rarely amended, and they, therefore, do not usually affect business in a significant way. These commercial laws affect the business when changes in areas such as Taxation, Sales tax laws and corporate laws are adjusted, for example, the 2010 Kentucky Law Act on business entities.
Rules of Court and Precedents are the only laws that have significant impacts on business. The reason is that cases on business disputes for example taxing will have to be ruled out in reference to the past ruled cases. This will have a disadvantageous effect on the business because of factors such as the economic status of the United States and the fluctuation of the dollar in the World Market during the initial ruling and the actual time of the new case.
How Case Laws Work
Case laws consist of specific decisions made by the court in the past. These in the Common Law System are the reported rulings made by courts of law and other selected appellate. These are distinguishable from statutory laws by the fact that the latter is made by legislative bodies such as Congress.
Case Laws in the United States have been divided into Federal Appellate Laws, Federal District Laws and State Laws (found in every state and enforced by the state courts). However, almost all the US case laws were borrowed from the English laws. They are usually used in reference to precedents, whereby a past ruling is used to pass a judgment decision for a new case.
Current case review
An example of case law is California’s Apple vs. Does law. This was a lawsuit filed in December 2004 under the Stored Communication Act (18), claiming that confidential information had been leaked online by the defendants. They were criticized by the public for the lawsuit file. However, Apple had the right to sue the defendants under the Stored Communication Act (18). This is because they had already acquired the legal rights to give civil subpoenas to any company or publisher who leaks any true or alleged information concerning them and their products.
Business Laws developments or issues
In the recent past especially for the past decade, various changes, developments, and changes have been made in the US laws, and business laws are no exception. The most notable change and development made is the Puerto Rico development that took place recently, in January 2011. The Code for Internal Revenue in Puerto Rico’s Act 1 showed appreciation and recognition for deceased people by reviewing their Tax Rates to 10% o taxable estates and gifts and a maximum figure of 54%.
Secondly, the stock exchange of Puerto Rico corporations and partnerships is another cap that has been ganged, whereby as of January 21st 2011, any corporations organized by Puerto Rico owned over 10% of the total by a decedent Puerto Rico person will henceforth be considered a Puerto Rico property.
Other notable changes that have been noted in the recent past include the minor adjustment of the Patent Reform Act of 2007. This new act limited infringement damages. However, the new law has not achieved much of the desired result because many people still do forum shopping. It was reviewed by the Senate’s Judiciary Committee of USA.
Contract law issues
This is a given bunch of promises or conditions set to be met, whose breach will lead to a remedy. A contract involves three stages: contract formation, contract breach, and its consequent remedies. Contract law issues emerge mainly when there is breach of contract or changes in the contract laws (Cummins 80).
Contract laws in the United States are derived from the constitution, internationally signed treaties, statutes, appellate from courts of law and regulations. These laws are critical because they define a lot of importance on business transactions and activities in the United States. If a contract law is altered in any means, this will automatically lead to the breach of contract and the contract will therefore be terminated or restructured. For this reason, there are a lot of attempts made not to change any details in a contract law until the contract expires. Contract law is important because it is one vital body of law in the USA that provides legal advice to the commerce department on Federal Procurement Law matters.
The main source of contract laws in the US is the Uniform Commercial Code which is the principal source of these laws. The code consists of various articles which address specific areas, for example commerce, politics, environment etc.
In the recent past, there has been rigidity in the code. For example, one of its missions is to maintain uniformity among various jurisdictions. In this goal, the jurisdictions have not been specified and this brings ambiguity in the whole statement. These are examples of goals that the Senate Judicial Committee is trying to review and they have consequently led to long debated with various judicial members taking different stands based on their views (Cummins 645).
Secondly and most importantly, there lacks uniformity in the uniform commercial code since the UCC isn’t fully uniform. For this reason, legislatures can change the set procedures of enforcing a law and most of these legislatures have misused this prerogative. For this reason, the prerogative should be changed in a way such that the legislatures cannot easily change the code. This will enhance uniformity in the law.
Tort Law issues affecting business in the US
These are civil codes that cover common laws and are sub-grouped into negligence, international liability and strict liability. Out of the three, negligence is seen to be the most common source of law (Buckley 23). This happens when a person neglects an agreed contract. The plaintiff goes ahead to sue the defendant in a court of law. In most cases, such cases of negligence are ruled out through the reference of precedents. However, there have been a lot of heated discussions in the Senate’s Judicial Committee as to whether or not such cases should be ruled out in reference to prior cases. The argument is that due to changes in time, settings, circumstances leading to the case and economic status of the country in the earlier times about the current, these precedents should be reviewed as they claim it is not fair to use them, especially in the commercial circles (Buckley 66).
In their argument, for example, they argue that it doesn’t make any judicial sense to use the United State vs. Carroll Towing Co. was ruled in 1944 cannot be ideally used now as a reference to settle a harbor dispute in the 21st century. This is because the harbor charges, time schedules, and services offered are completely different from the current. It is for such reasons therefore that some torts have been done with and others revised in the United States’ constitution, to make them more sensible and applicable in modern-day cases. With amendments of torts especially those acquired from precedents, it has become way easier for both the judges to pass rulings and both the plaintiff and defendants to acquire justice.
Conclusion
In conclusion, from the study of the United States’ laws, it stands out that many changes and amendments take place in the country’s sources of Law. As much as it is healthy since it leads to the establishment of better justice systems on the judicial stand, these changes and amendments can also on the flipside turn out to be very risky because lots of changes and revisions may lead to the revision of the whole clause altogether, leading to total dilution of the initial legislation.
References
Bassiouni, Cherif. International extradition: United States Law and Practices. New York City: oxford University Press. 2007. Print.
Buckley, William. Torts and personal injury law. Florence, KY: Delmar Cengage Learning. 2009. Print.
Cummins, Sally. Digest for United States’ Practice in international Law. New York City: Oxford University Press. 2008. Print.