The History and Definition of Statutory Law - Essay Example

Sta y Law v. Caselaw I. Introduction Law is a system of rules a society sets to maintain order and protect harm to persons and property. Law is ancient, dating back at least to the Code of Hammurabi, written by an ancient Babylonian king around 1760 BC. Today, most countries have tens or hundreds of thousands of pages of law. Laws are enforced by the police, supported by the court and prison systems. Laws are written by legislators, such as senators or congressmen. In America and many other countries, laws must uphold and not contradict the Constitution, a document outlining the most basic rules of the country. II. The History and Definition of Statutory Law The word statute typically refers to a law, e.g., The Patriot Act, passed by a state legislature or the U.S. Congress that commands, prohibits, or declares something. It is sometimes called legislation. State and federal court cases often involve statutory interpretation, and enactment of a statute may well reverse an established case law precedent. Nevertheless, it is easy to overlook the importance of statutes in law school because most law school discussions focus on case law. The tools and techniques used to research statutes are similar to those used to research federal and state constitutions, treaties, administrative rules, executive orders, uniform laws, local charters and ordinances, and court rules. Statutory research may thus mean finding and analyzing any of these documents. All statutes are the product of congressional hearings thus the process is explained herewith. Congress consists of 535 men and women (100 Senators and 435 Representatives), each performing a delicate balancing act between the needs and demands of their constituents, their political parties, their contributors, their staffs, the Administration, and even each other. These often conflicting demands can simultaneously pull members of Congress in dozens of different directions on any one issue. It is against this backdrop that legislative process, or the passage of a bill into law, occurs in the two Chambers of Congress. These laws are called statutes. Congress is collegial, not hierarchical, and power and influence in administration decision making tend to flow in all directions. Although the How a Bill Becomes Law chart is useful in understanding the general legislative process, it is not a defined roadmap. Since no two bills ever follow exactly the same path to enactment, you always have to rethink the chart with every bill you research, keeping in mind the parliamentary and political maneuvering that can occur anywhere in the process. The life of each Congress is two years and each Congress has been numbered since the first Congress in 1789. The 104th Congress, for example, convened in January 1995 and ran until October 1996; the 105th Congress began in January 1997. Since World War II, the two-year Congress has been divided into two sessions (first and second), each lasting one year. Prior to the 77th Congress (1941-42), there occasionally were three or four session Congresses; some of these sessions were for a very short duration, sometimes lasting only a month or less. The numbering of Congressional publications is sequential within each publication type, beginning with the number "1" in every Congress. This means that each Congress will have a bill numbered H.R. 1, thus knowing the number of the Congress is important. Bills not acted upon when the two-year Congress adjourns sine die are considered to have expired. To be considered in the next Congress, these bills must be reintroduced and numbered in the new Congress' sequential order of bills. Hence, H.R. 1 from the 104th Congress can be very different from a bill numbered H.R. 1 from the 100th Congress. Knowing the Congress number is imperative for identifying the proper H.R. 1. The following describes the process by which statutes are created: Bill or Measure General legislation is designated by "H.R." in the House of Representatives and "S." in the Senate. Public bills deal with general matters and, if signed, become public laws1. Private bills deal with individual matters, such as a person's claim against the government, and become private laws if signed. Joint Resolution This is a resolution of both Chambers, generally used for limited matters, such as commemorative holidays. Designated as H.J.Res. in the House and S.J.Res. in the Senate, joint resolutions are signed by the President and have the force of law. Joint resolutions also are used to propose an amendment to the Constitution. In this case, they must be agreed to by a two-thirds majority in each Chamber and by three-fourths of the states. The President does NOT sign this type of joint resolution. Concurrent Resolution This is a resolution dealing with internal matters of both Chambers, designated as H.Con.Res. in the House and S.Con.Res. in the Senate. A concurrent resolution must be passed by both Chambers, but is NOT signed into law by the President and does not have the force of law. The congressional budget resolution is an example of a concurrent resolution. Resolution Also known as a "simple resolution", this housekeeping measure is considered by and affects only one Chamber. Designated as H.Res. in the House and S.Res. in the Senate, simple resolutions are not signed by the President and do not become law. A rule for debate of a bill in the House is a simple resolution that must be approved by the House before debate can begin on the bill itself. Below is a Chart of the first laws enacted: 1st Congress (Mar 4, 1789 - Mar 3, 1791): Administration of GeorgeWashington (Source: Lexis Nexis) Congress Statute at Large Act Name or Characterization Date Approved Act Purpose 1st 1 Stat. 24-27 Tariff Act of 1789 Jul 4, 1789 Establish procedures to raise money to pay Government wages and obligations and to fund Federal debt 1st 1 Stat. 28-29 Department of Foreign Affairs Jul 27, 1789 Establish Department of Foreign Affairs 1st 1 Stat. 49-50 Department of War August 7, 1789 Establish Department of War 1st 1 Stat. 65-67 Department of Treasury Sep 2, 1789 Establish Treasury Department 1st 1 Stat. 68-69 Department of State Sep 15, 1789 Change name of Department of Foreign Affairs to Department of State 1st 1 Stat. 70 Office of Postmaster General Sep 22, 1789 Provide for the temporary appointment of a Postmaster General 1st 1 Stat. 73-93 Judiciary Act of 1789 Sep 24, 1789 Establish the Federal Courts system 1st 1 Stat. 101-103 First Census Mar 1, 1790 Provide for apportionment of Representatives and establish decennial census 1st 1 Stat. 103-104 Uniform Rule of Naturalization Mar 26, 1790 Establish a uniform rule for naturalization of free white persons 1st 1 Stat. 109-112 First Patent Law Apr 10, 1790 Establish a 3-man board with power to grant patents 1st 1 Stat. 124-126 First Copyright Law May 31, 1790 Provide copyright protection for plays, maps, and books 1st 1 Stat. 130 Permanent Seat of Government Jul 16, 1790 Provide for establishment of the Capital 1st 1 Stat. 138-144 Funding and Assumption Act of 1790 Aug 4, 1790 Provide for Federal government assumption of debts incurred by the States as a result of their participation in the Revolutionary War 1st 1 Stat. 191-196 First Bank of the U.S. Feb 25, 1791 Incorporate the Bank of the U.S. 1st 1 Stat. 199-214 First Internal Revenue Law Mar 3, 1791 Create revenue districts and imposed a tax on distilled liquors III. The Definition and History of Caselaw Case law is distinct from statutory law. Case law is not actually codified by legislatures. It is created by judges, but is binding on lower courts. For instance, if the Supreme Court decided on an issue, their decision becomes law. For example, when the Supreme Court ruled that Miranda warnings were required, it became the law across the United States, even though no legislature passed the law or codified it. Similarly, a if a state supreme court rules on a case, the ruling becomes the law of the state, though it is not binding on other states. Case law is the body of available writings explaining the verdicts in a case. Case law is most often created by judges in their rulings, when they write their decisions and give the reasoning behind them, as well as citing precedents in other cases and statutes that had a bearing on their decision. A single case may generate virtually no written interpretations or opinions, or, as is the case with many that come before the Supreme Court, it may generate a number of opinions as it works its way through various lower-circuit courts. These collected opinions can be referred to in the future by other judges when they make their rulings on similar cases, allowing the law to remain relatively consistent. State trial courts, such as the California Circuit Court, do not publish opinions, and so do not generally add to the body of case law. Federal trial courts, such as the U.S. District Court, rarely publish opinions. The bulk of published opinions, available both online and in print form, come from both the state and federal higher courts. Official government agencies publish both federal Supreme Court and state higher court decisions, while the opinions of the U.S. Circuit Courts are published by private agencies. Case law is often referred to as common law in many regions of the world, and is also known as judge-made law. This latter term derives from the fact that, while legislation is technically passed in most countries by a separate legislative branch, courts are able to exercise a moderate amount of quasi-legislative power through the use of precedent and case law. Case law is viewed by most people as a crucial part of a functioning judiciary, as it allows for courts to transform decisions that may have taken a great deal of time and energy to arrive at into a sort of de facto law, making future cases much easier to decide. In some cases, a judge may intentionally go against established case law in an effort to begin the process of re-examining a precedent and perhaps ultimately changing it. This often happens with precedents in case law that a judge may consider out-dated or irrelevant in the contemporary climate. By issuing a decision that the judge knows will be appealed, he or she pushes the case into higher courts where the old established precedents may be overturned in favor of a new outlook. IV. Caselaw is More Advantageous To Argue Every statute is subject to interpretation and as society has evolved, so has the law. For this reason, one cannot rely on a statute alone to promote his argument. This is so even of prosecutors. Statutes often have exceptions carved out and those exceptions are the result of case law. As society becomes more sophisticated, so does the application of laws. This is why oftentimes a litigant may allege that a statute is unconstitutional on its' face or that is unconstitutional "as applied". Judges are consistently asked to look at the intent of the drafters behind each statute and when that becomes difficult, case law blooms. The notion that the law is black and white is a foolish one. If that were the case, there would be no reason for litigation. As attorneys we rely on the interpretation of a statute so that we can create an argument that is advantageous to our client. One may ask, "At what point have we strayed too far form the purpose of the statute". The answer to that question comes from our appellate courts-meaning the circuits and the appellate divisions in a given jurisdiction. Ultimately, any questions as to interpretation are resolved by the United States Supreme Court. It is for these reasons that case law, is the preferred method of argument. It should be noted however, that when writing a brief or memorandum, any case law cited, must be from within the Federal Circuit or Highest Appellate Court (as the case may be) of that state. Read More