The United States Legal System

• Author: Beau Steenken, Tina M. Brooks
• Pages: 1-23

Chapter 1

The United States Legal

System

The simplest form of remedy for the uncertainty of

the regime of primary rules is the introduction of

what we shall call a ‘rule of recognition’… Wherever

such a rule of recognition is accepted, both private

persons and officials are provided with authoritative

criteria for identifying primary rules of obligation. –

H.L.A. Hart, The Concept of Law

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. – Preamble to the United Sta tes

Constitution

1.1 Learning Objectives for Chapter 1

In working through this chapter, students should strive to be able to:

• Describe key features of the U.S. legal system including:

o Federalism,

o Separation of Powers,

o Sources of Law, and

o Weight & Hierarchy of Authority.

• Assess how the structure of the legal system frames research.

2

1.2 Introduction to Researching the Law

The practice of law necessarily involves a significant amount of research. In

fact, the average lawyer spends much of her work time researching. This

makes sense when one considers that American law as a field is too vast,

too varied, and too detailed for any one lawyer to keep all of it solely by

memory. Furthermore, the law is a living thing; it tends to change over

time. Thus, in order to answer clients’ legal questions, lawyers typically

conduct research into the laws affecting their clients.

Several things make legal research different from the types of research most

law students performed prior to law school. First, rules of law tend to be

both highly detailed and highly nuanced, so legal research often includes

acts of interpretation even at the research stage. Second, the rules of law

derive from a myriad of sources, many of which may be unfamiliar to

students. Furthermore, because legal research is so important to the practice

of law, the publication of legal materials has long been a profitable field. As

such, there exists a long history of publishing the various sources of law. As

part of the publishing history, legal sources developed their own

information systems. In large part, legal information systems predate the

information systems most familiar to students, like the Dewey Decimal

System or Library of Congress Classification. As such, the organization of

legal materials tends to differ from that of other materials. Finally, the

process of legal research itself tends to be different. In other fields,

researchers often investigate ideas in the abstract. In the law, a researcher

must always keep the specific facts of her particular client’s situation in

mind, as a lawyer must always apply the results of her research to her

client’s problem.

Because legal research differs so substantially from other types of research,

the American Bar Association requires that law schools specifically instruct

students in legal research.1 Typically, research instruction occurs in the

context of a Legal Research & Writing (LRW) course. Schools teach legal

research and writing together because the two activities (finding/applying

the law and then communicating the found application) intertwine.

However, legal writing falls outside the scope of this text, which focuses on

the research portion of legal practice.

1 AMERICAN BAR ASSOCIATION, 2016-2017 STANDARDS AND RULES OF

PROCEDURE FOR APPROVAL OF LAW SCHOOLS, Standard 302(b) (2015).