Introduction to the Law and Legal System of the United States

William Burnham, Wayne State University Law School

Stephen F. Reed, Northwestern University School of Law

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Table of Contents

General Note on Changes in the 7th Edition:
Updated with all cases up through 2019-2020 term plus a few from 2020-2021 term. Most cases mentioned here are Supreme Court cases, but a few important lower court cases are also included. If sections seemed to be in need of reorganization and revision because of recent cases or for more clarity, the changes made are indicated. In terms of style, footnotes are shorter for a cleaner look and less distracting read.

Chapter I – History and Governmental Structure:

-- federal census collecting data on all persons within a state instead of eligible voters is permitted (Evenwel v. Abbott)

-- history of President’s “cabinet”

-- dormant commerce clause and durational residency requirement (Tennessee Wine & Spirits Retailers Association v. Thomas)

-- limits on presidential power is reorganized with the latest presidential immunity cases from 2020 (Trump v. Mazars and Trump v. Vance) and more analysis of presidential power in general

-- inherent executive power of the president, Take Care Clause (4-4 decision on DACA in U.S. v. Texas)

-- vertical federalism and 10th Amendment limits on the commerce clause power of Congress

-- Congress’s investigatory and oversight power, history of exercise and abuses (Trump v. Mazars)

-- electoral college in light of continued debate about it as opposed to the popular vote, including the “faithless electors” case (Chiafalo v. Washington)

-- durational residency requirement as violation of dormant commerce clause (Tennessee Wine & Spirits Retailers Association v. Thomas)

-- federal preemption of state law (Virginia Uranium, Inc. v. Warren; Kansas v. Garcia)

-- state court duty to apply federal law (James v. Boise)

-- federal common law limits (Rodriguez v. Federal Deposit Insurance Corp)

Chapter II – Legal Methodology:

-- federal common law (Rodriguez v. Federal Deposit Insurance Corp)

-- statutory interpretation of transplanted terms (Hall v. Hall; Taggart v. Lorenzen) (new section)

-- purposive statutory interpretation and its rejection (Bostock v. Clayton County)

-- lenity rule in statutory interpretation of criminal statutes (Ocasio v. United States; Shular v. United States) (section revised)

-- legislatively inspired common law (Dutra Group v. Batterton)

-- deference to agency interpretation of statutes (Epic Systems Corp. v. Lewis)

-- effect of 4-1-4 Supreme Court decision, plurality opinions, and stare decisis (Ramos v. Louisiana) (section revised)

-- Congressional “overruling” of Supreme Court statutory interpretation (section revised)

Chapter III – Adversary System and Jury Trials:

-- adversarial principles and too-active judges (United States v. Sineneng-Smith)

-- removal of jurors during jury deliberations, including when their view of the case is affected by religious considerations (U.S. v. Brown)

-- unanimous juries (Ramos v. Louisiana) (jury composition section revised)

-- power of judge to call civil jury back after verdict and re-empanel them to clarify verdict (Dietz v. Bouldin)

-- juror lying during jury selection (Warger v. Shauers)

-- juror racial bias (Peña–Rodriguez v. Colorado)

-- 12-person jury in civil cases

-- mixed fact-law issues juries can decide (Merck Sharp & Dohme Corp. v. Albrecht)

Chapter IV – Legal Profession:

-- statistics and descriptions of branches of the profession updated

-- lawyer ethics section updated

Chapter V – Judicial System:

-- appellate review of mixed fact-law determinations (Monasky v. Taglieri; U.S. Bank N. A. v. Village at Lakeridge)

-- appellate review for abuse of discretion (McClane v. Equal Employment Opp. Comm’n; Highmark, Inc. v. Allcare Health Management System, Inc.)

-- preserving error for appellate review (Holguin-Hernandez v. United States)

-- plain error appellate review of factual issues (Davis v. United States) (section revised)

-- state court duty to apply federal law (James v. Boise)

-- structure and functions of the US Supreme Court including Congress’s power to increase its size and quorum requirements (section revised)

-- bill to establish a Code of Conduct for Supreme Court Justices including recusal

-- certiorari grants only as to some issues (Box v. Planned Parenthood of Indiana and Kentucky Inc.)

-- financial conflicts of interest of judges (Caliste v. Cantrell) (section revised)

-- removal of cases to federal court by counterclaim or third-party defendants (Home Depot U.S.A., Inc. v. Jackson)

-- content of state law applied by federal courts and “Erie guesses”; certification of unclear state law issues (Mckesson v. Doe) (section revised and expanded)

-- simultaneous litigation in state and federal courts and abstention doctrines revised (Sprint Communications, Inc. v. Jacobs)

Chapter VI – Administrative Law:

-- availability of judicial review and what constitutes an issue of law (Guerrero-Lasprilla v. Barr)

-- timing of judicial review (PDR Network, LLC v. Carlton & Harris Chiropractic Inc.)

-- habeas corpus as a means of judicial review (Department of Homeland Security v. Thuraissigiam)

-- “substantial evidence” standard for judicial review of administrative fact determinations (Biestek v. Berryhill; Dickinson v. Zurko) (section revised)

-- deference to administration determinations of legal issues revised with Chevron, Auer, and Skidmore deference set out in more detail; recent cases on exceptions to Chevron deference (Encino Motorcars, LLC v. Navarro) (section revised)

-- review of discretionary administrative action for being “arbitrary and capricious” (Department of Homeland Security v. Regents of the University of California) (section revised)

-- presidential appointment powers for local federal officials of federal territories (Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC)

-- civil service employees’ place among federal officials (section revised)

-- appointment of SEC administrative law judges; de facto officer doctrine; (Lucia v. Securities & Exchange Comm’n) (section revised)

-- appointment of Patent and Trademark Appeals judges (Anthrex v. Smith & Nephew)

-- appointment of Director of Consumer Financial Protection Bureau (Seila Law LLC v. Consumer Financial Protection Bureau);

-- doctrine of non-delegation of legislative powers to agencies (Gundy v. United States)

-- suits against the Tennessee Valley Authority for discretionary functions (Thacker v. Tennessee Valley Authority)

-- abrogation of Eleventh Amendment immunity of states under the federal Copyright Act (Allen v. Cooper) (section revised)

-- suits against states in the courts of other states (Franchise Tax Board of California v. Hyatt)

-- continuing narrowing of the scope of Bivens implied right of action (Ziglar v. Abassi)

-- suits against state and federal officials for personal liability; good faith executive immunity (Taylor v. Riojas)

Chapter VII – Civil Procedure:

-- expanded treatment of statutes of limitation, including equitable tolling of limitations periods, discovery rule, when period begins to run (Artis v. District of Columbia; Menominee Indian Tribe of Wisconsin v. United States; Rotkiske v. Klemm; McDonough v. Smith; Intel Corp. Investment Policy Committee v. Sulyma) (section revised)

-- statutes of repose (California Public Employees’ Retirement System v. ANZ Securities, Inc; Nutraceutical Corp. v. Lambert)

-- disgorgement of profits as equitable relief (Liu v. Securities and Exchange Commission)

-- discovery sanctions limits (Goodyear Tire & Rubber Co. v. Haeger)

-- attorney fee awards in copyright cases; differing meanings and definition of “prevailing party” (Kirtsaeng v. John Wiley & Sons, Inc.; CRST Van Expedited v. Equal Employment Opportunity Comm’n) (section revised)

-- government recovery of attorney fees in patent cases (Peter v. NantKwest Inc)

-- equitable defenses to law claims (SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC) (section revised)

-- defensive preclusion and its exceptions (Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.)

-- preclusion under Federal Tort Claims Act (Brownback v. King)

-- arbitration clauses (Epic Systems Corp. v. Lewis; CFBP rule demise; Lamps Plus, Inc. v. Varela; Kindred Nursing Centers Limited Partnership v. Clark; New Prime, Inc. v. Oliveira; Henry Schein, Inc. v. Archer and White Sales, Inc) (section revised)

-- cy pres relief in class actions (Frank v. Gaos)

-- 2018 class action amendments to FRCP; oversight of settlements, notice and payments made to members who drop objections

-- tolling effect of class actions for putative members (China Agritech, Inc. Resh)

-- personal jurisdiction in cases involving the Internet, developments since Zippo (section revised)

-- specific personal jurisdiction contacts and limits (Bristol-Myers Squibb Co. v. Superior Court of California)

-- general personal jurisdiction contacts and limits (BNSF Railway Co. v. Tyrrell)

-- full faith and credit in the same-sex partner custody context (V.L. v. E.L)

-- state sovereign immunity in courts of other states (Franchise Tax Bd. of California v. Hyatt)

-- federal court abstention doctrines (section revised)

-- preliminary injunctions (Winter v. Natural Resources Defense Council)

Chapter VIII – Criminal Procedure:

-- right to appeal constitutionality of statute after guilty plea (Class v. U.S.)

-- restitution, costs of investigation recoverable (Lagos v. United States)

-- return of assessments of costs and restitution on exonerated defendants (Nelson v. Colorado)

-- incorporation of Bill of Rights provisions, jury verdict, excessive fines (Ramos v. Louisiana; Timbs v. Indiana)

-- searches and seizures (Kansas v. Glover; Byrd v. U.S.; Collins v. Virginia; Dahda v. U.S.; Carpenter v. U.S.; Birchfield v. North Dakota; Mitchell v. Wisconsin)

-- confessions and Miranda waiver section revised

-- duty to disclose exculpatory evidence (Turner v. U.S.)

-- exclusionary rule (Utah v. Strieff)

-- speedy trial (Betterman v. Montana)

-- retaliatory arrests for exercise of First Amendment rights (Nieves v. Bartlett and Lozman v. Rivera Beach)

-- racially discriminatory peremptory challenges of jurors (Flowers v. Mississippi)

-- racially biased jurors (Pena-Rodriguez v. Colorado; Tharpe v. Sellers)

-- insanity defense (Kahler v. Kansas)

-- “testimonial” self-incrimination compulsion (United States v. Kirschner)

-- right of criminal defendant to control defense (McCoy v. Louisiana)

-- right to counsel and need to show prejudice in habeas (Weaver v. Massachusetts) (habeas section revised)

-- death sentences, execution methods, mental incapacity, competence of counsel, jury instruction, victim family testimony (Bucklew v. Precythe; Moore v. Texas; Andrus v. Texas; Madison v. Alabama; Kansas v. Carr; Lynch v. Arizona; Bosse v. Oklahoma)

-- right to jury trial in supervised release revocation (Haymond v. U.S.)

-- right to a public trial applied to jury selection stage (Presley v. Georgia)

-- forfeiture of assets; pretrial order sequestering untainted assets to be used to hire counsel as a violation of the right to counsel (Luis v. U.S.)

-- double jeopardy in severed cases, mixed verdicts, dual sovereignty (Currier v. Virginia; Bravo-Fernandez v. United States; Gamble v. U.S.; Puerto Rico v. Sanchez Valle) (section revised)

Chapter IX – Constitutional Law:

-- standing (Thole v. U.S. Bank N.A.; Wittman v. Personhuballah; Spokeo, Inc. v. Robins; Gill v. Whitford; Rucho v. Common Cause; Clapper v. Amnesty International U.S.A)

-- mootness and its exceptions (Already, LLC v. Nike, Inc.; Campbell-Ewald v. Gomez; United States v. Sanchez-Gomez; Genesis HealthCare Corp v. Symczyk; Azar v. Garza; Chafin v. Chafin; Mission Product Holdings, Inc. v. Tempnology; Uzuegbunam v. Preczewski)

-- discriminatory state taxation (Dawson v. Steager)

-- commandeering states (New Jersey v. Nat’l Collegiate Athletic Ass’n)

-- commerce clause power (Taylor v. United States)

-- dormant commerce clause doctrine (Tennessee Wine and Spirits Retailers Association v. Thomas; South Dakota v. Wayfair Inc.)

-- state action (Manhattan Community Access Corp. v. Halleck)

-- voting and redistricting (Abbott v. Perez; North Carolina v. Covington; Harris v. Arizona Independent Redistricting Commission; Cooper v. Harris)

-- abortion rights (Whole Woman’s Health v. Hellerstedt; Box v. Planned Parenthood of Indiana and Kentucky Inc.; Russo v. June Medical Services LLC)

-- birth control (Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania)

-- free speech (Iancu v. Brunetti; Matal v. Tam; Barr v. American Association of Political Consultants Inc.; Minnesota Voters Alliance v. Mansky; U.S. Agency for Int'l Development v. Alliance for Open Society Int'l; Lozman v. Riviera Beach; Expressions Hair Design v. Schneiderman)

-- vagueness (Sessions v. Dimaya, U.S. v. Davis)

-- compelled speech (National Institute of Family and Life Advocates v. Becerra; Janus v. AFSCME Council 31)

-- prohibition of Internet acccess (Packingham v. North Carolina)

-- aid to religion (Espinoza v. Montana Department of Revenue; American Legion v. American Humanist Association; Trinity Lutheran Church of Columbia Inc. v. Comer) (section revised)

-- free exercise of religion (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission; Holt v. Hobbs; Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Our Lady of Guadalupe School v. Morrissey-Berru) (section revised)

Chapter X – Contracts

-- offer and acceptance in electronic contracts – Uniform Electronic Transactions Act

-- validity of electronic signatures discussed – Electronic Signatures in Global and National Commerce Act (E-SIGN)

-- court-supplied terms revised

-- unilateral mistake added to discussion of mistake

-- additional information on contracting with minors added

-- intoxication added to discussion of capacity

-- unconscionable contracts further described

-- contract content under UCC section expanded

-- security interests section revised

-- debt collectors (Sheriff v. Gillie)

-- TRACED act concerning robocalls updated

Chapter XI – Torts

-- torts in perspective revised

-- contributory negligence footnote revised

-- addition to punitive damages section

-- role of insurance revised

Chapter XII – Property Law

-- equitable servitudes revised

-- footnotes on trespassers, eminent domain revised

-- ability to bring takings suit in federal court (Knick v. Township of Scott)

-- copyright authorship (Georgia v. Public.Resource.Org)

-- expressions of ideas section expanded

-- business method patents section updated and revised

-- generic.com trademarks (U.S. Patent and Trademark Office v. Booking.com B.V.)

-- immoral or scandalous trademarks (Iancu v. Brunetti and Matal v. Tam)

-- personal names trademarks revised

-- lost profits section added to infringement suits (Romag Fasteners, Inc. v. Fossil, Inc.)

-- trademark dilution section added

Chapter XIII – Family Law

-- revised uniform acts incorporated throughout

-- common law marriage section revised

-- collaborative divorce process and model statute added

-- divorce taxation rules updated

-- custodial parent right to move updated

-- visitation by others revised

-- international custody issues section added (includes discussion of Monasky v. Taglieri)

-- domestic partnership section updated

-- expansion of right to marry extended to parentage (Pavan v. Smith)

-- spouse/partner abuse section revised

Chapter XIV – Criminal Law

-- mens rea requirement for “use of force” in Armed Career Criminal Act (ACCA) (Borden v. U.S.)

-- robbery section revised and expanded; force needed for robbery under ACCA (Stokeling v. U.S.)

-- insanity section revised and expanded

-- death penalty section revised, expanded and thoroughly updated through Virginia’s abolition of its death penalty in 2021

-- insanity defense and states’ power to define it (Kahler v. Kansas)

-- wire fraud elements (Kelly v. U.S.)

-- sentencing guidelines errors (Rosales-Mireles v. U.S.; Davis v.U.S.)

-- ACCA violent felony sections void for vagueness (Sessions v. Dimaya; Davis v. U.S.; Welch v. U.S.)

-- rights of acquitted defendants to recover assessments of costs (Nelson v. Colorado)

Chapter XV – Business Law

-- public benefit corporations and nonprofit corporations added to discussion of entity types

-- partnership section revised

-- limited partnership section revised

-- state of Delaware marketing efforts mentioned

-- corporate formation section revised

-- corporations organizational structure section revised

-- extraordinary corporate transactions section revised

-- actual fraud in fraudulent conveyance (Husky Int'l Electronics v. Ritz)

-- vertical restraints on trade (Ohio v. American Express)

-- footnotes on vertical merger guidelines updated

-- ABC test for determining employee/independent contractor status (Dynamex Operations W. v. Superior Court) and classification of gig workers

-- employment discrimination against homosexual and transgendered persons (Bostock v. Clayton Cty)

-- court jurisdiction over EEOC claims (Fort Bend Cty. v. Davis)

-- “but for” causation in ADEA claims (Babb v. Wilkie)

-- scope of environmental law section revised

-- what waters are covered (Nat'l Ass'n of Mfrs. v. DOD)

-- what constitutes a discharge (Cty. of Maui v. Haw. Wildlife Fund)

-- potentially responsible parties can bring state law claims against one another (Atl. Richfield Co. v. Christian)

-- endangered species updated

Chapter XVI – Tax Law

-- statistics and tax rates updated throughout chapter, including references to Tax Cut and Jobs Act of 2017

-- concept of “economic substance” added

-- bonus depreciation added

-- standard deduction added

-- section on tax exempt organizations added

Chapter XVII – International Aspects of U.S. Law:

-- various sections updated for finished parts of the Restatement 4th (2018) (treaties, jurisdiction, and sovereign immunity)

-- revised, reorganized and updated section on ex post and ex ante executive agreements

-- revision of section on conflicts between federal statutes and treaties and customary international law

-- reciprocal discovery rights of foreign litigants in the U.S. under 28 U.S.C.A. §1782

-- more complete treatment of the limits on state action imposed by the dormant foreign commerce clause and dormant relations clause doctrines

-- latest cases on the Alien Tort Statute (Jesner v. Arab Bank)

-- new case on proof of foreign law in U.S. courts (Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd)

-- more detail on prescriptive comity in legislative jurisdiction

-- limits on extra-territorial reach of U.S. law and prescriptive jurisdiction in RICO cases (RJR Nabisco v. European Union)

-- mailing service of process under the Hague Service Convention (Water Splash, Inc. v. Menon)

-- treaties and employment discrimination by foreign employers

-- updated “cultural clash” of legal traditions between U.S. and other countries in anti-trust and securities regulation, especially related to discovery

-- more on passive personality principle as a basis for extraterritorial reach of U.S. law

-- modification of “effects” principle in U.S. law’s extraterritorial reach

-- Restatement Fourth’s abandonment of the “reasonableness” requirement for jurisdiction

-- inapplicability of First Amendment abroad (U.S. Agency for Int’l Development v. Alliance for Open Society Int’l)

-- issues of applicability of Fourth Amendment abroad to U.S. investigations of U.S. citizens abroad

-- more specific coverage of U.S. apprehension of drug smuggling in the high seas

-- more on sovereign compulsion as a defense to compliance with U.S. court orders and revision of Restatement Fourth on the subject

-- more on foreign “blocking” statutes directed at U.S. discovery, punitive damages

-- 2019 Hague Convention on Recognition and Enforcement of Judgments (including personal jurisdiction standards for judgments)

-- update on New York Convention on Enforcement of Commercial Arbitration Awards (GE Energy Power Conversion France SAS v. Outokumpu Stainless)

-- more detail on foreign sovereign immunity and FSIA (Federal Republic of Germany v. Phillipp; Venezuela v. Helmerich & Payne Int’l)

-- revisions of discretionary function exception and commercial activities exception under FSIA

-- 2016 Justice Against Sponsors of Terrorism Act (JASTA); punitive damages in civil suits against terrorists (Opati v. Republic of Sudan)

-- revision and expansion of section on act of state doctrine

-- more on efforts to execute on judgments against Iran (Rubin v. Islamic Republic of Iran; Bank Markazi v. Peterson)

Learn more about this series.