Chapter 1 Historical Origins and Nature of theU.S. Legal System
For I think it an undeniable position, that a competent knowledge of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; and highly useful, I had almost said essential, part of liberal and polite education. - Blackstone’s The Study, Nature, and Extent of the Law
The Law, Legal and Moral Norms, Positive Law, and the “Rule of Law” The word “law” has multiple meanings. Law is a means that society uses to attain its conception of legitimate order and stability. Law is also the entire system of rules that, when enforced by consequences, materialize a society's ideal of legitimate order. Law has both abstract and concrete forms. Abstract law refers to the field of study of a society’s rules regulating how individuals must behave toward one another. The study of abstract law typically includes consideration of legal philosophy, legal methods, and legal research. In the United States, at the federal level, abstract legal rights and principles are actualized concretely in the Constitution, in statutes passed by Congress, in executive orders issued by the President, in regulations issued by agencies, and in decisions handed down by courts. Such a concrete form of law is the system of actual, written rules which materialize a society's ideal of legitimate order and is also known as positive law. Both legal and moral norms are rules of conduct. Laws, being legal norms, are binding rules of conduct that are enforced by a higher authority, usually state institutions, that define what types of conduct are lawful, what types of conduct are unlawful, and how unlawful conduct should be punished. The enforcing authority is usually the state. However, in the case of theocracies, where the state and religious institutions merge, both the state and religious institutions may enforce laws. For example, the five foundational tenets, or maqasid, of Islam are enforced by a caliphate, or the laws governing Catholic priests are enforced by the Vatican. While legal and moral norms are both rules of conduct, moral norms may be local, social norms or could be derived from the Mosaic Decalogue (the Ten Commandments). How abstract legal rights and principles are actualized in a given place and at a given point in time depend upon prevailing legal norms. This concept is known as the “rule of law” and it is the intermediary between the concrete legal norm and the ideal of order that norm is supposed to achieve. Norms change as societal values evolve. American colonists inherited their reverence for the “rule of law” from the British. By the beginning of the thirteenth century, English commoners felt that they had “rights” that inherently belonged to them. They developed a strong respect for the “rule of law.” This history includes the struggle for the rights established in the Magna Carta Libertatum in 1215 (The Great Charter of the Liberties of England). Through this struggle the English nobility (the barons) limited the absolute and often arbitrary power of the king, subjecting the king to the law. Article 39 in the original 1215 Charter states: NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right. Of course being disseised (i.e., dispossessed) of one’s freehold was important to any Freeman (non-serf) in feudal times. “We will sell to no man” meant that the king could no longer demand payment to receive “justice” and to not be able to “deny or defer” meant the King could no longer stop lawsuits. These are all due process rights that have come down to us today as a historical gift and are part of the “rule of law.” Among its many important provisions, the Magna Carta codifies the right of habeas corpus but the English Habeas Corpus Act of 1679 defines and strengthens the ancient prerogative writ of habeas corpus, which required a court to examine the lawfulness of a prisoner's detention and thus prevent unlawful or arbitrary imprisonment. The first copy of the Magna Carta to be published in the colonies was included in William Penn’s The Excellent Privilege of Liberty and Property: being the birth-right of the Free-Born Subjects of England (1687). Almost a century later in 1780, John Adams prominently placed the idea of "a government of laws, not of men" in the Commonwealth of Massachusetts’ initial state constitution. The idea that laws would govern the new nation rather than the arbitrary dictates of the king was held widely throughout the colonies and the Constitution’s Fifth Amendment states that “no person shall be deprived of life, liberty, or property with due process of law.” Indeed, the Magna Carta lives with us today.
The Declaration of Independence: Natural Law and Moral Norms The introduction to the Declaration of Independence consists of a single sentence stating that this document will “declare the causes” that impel “the thirteen united States of America” to dissolve their “political bands” with the British Empire. IN CONGRESS, JULY 4, 1776 The unanimous Declaration of the thirteen united States of America When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. The preamble to the Declaration of Independence sets out “certain unalienable Rights” and states that “governments are instituted” in order “to secure these rights” but that “the People” have the right to “institute new government” when existing government becomes “destructive” of these “unalienable rights.” We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. What gives the people the right to rebel and “institute [a] new Government?” It is the “Laws of Nature and of Nature’s God” that gives “one people” the right to a “separate and equal station”, and it is “their Creator” who endows them with the “Rights” to “Life, Liberty, and the Pursuit of Happiness” that governments “instituted among Men” are to protect. This is an example of natural law, that is, certain inherent values or rights that are understood to exist via human reason. Humankind uses reason to analyze the laws of nature and determine just law and “rights.” It must be recognized that the Founders were predominantly Christians who believed that the law of nature was infused into human beings, “endowed” in them by God at the time of Creation. While there were the “Laws of Nature,” Nature also had a “God,” a higher incarnation, but they both provided the authority for rebellion and for the founding of the United States of America. These laws were premier moral norms. They provided the foundation of a political philosophy that repudiated the theory of absolute monarchy whereby the king or queen was considered divine or selected by God, and the rights of subjects were only those afforded by the monarch. Natural law has been an important philosophical issue through the ages, especially the relationship between positive law and natural law. There have been many theories and variants of natural law, beginning with Aristotle. The writings of Thomas Aquinas, John Locke and Thomas Hobbes are especially important for the development of English law, the antecedent of American law. Natural law is often thought of as virtuous and righteous, representing the best of human understanding. Before Loving v. Virginia (see Sidebar#2 cited earlier in the Introduction) was decided in the Supreme Court, the judge that ruled on the appeal of the original criminal miscegenation charge in the Virginia Caroline County Circuit Court wrote that: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. Ironically, racists relied upon natural law arguments to justify their insidious practices of slavery and segregation. Forty-one of the signers of the Declaration of Independence were slave owners and the institution of slavery becomes an important influence on the framing of the Constitution. It is important to read the rest of the Declaration of Independence, the body of which lists the specific grievances that impelled Americans to rebellion. Twenty-five of the fifty-six men who signed the Declaration of Independence were lawyers, including: John Hancock, Thomas Jefferson, George Wythe, Roger Sherman, Samuel Huntington, John Adams, and Francis Hopkinson. They had a deep knowledge and respect for English law and many of the grievances are concerned with legal rights that they presumed were theirs as colonists of the Crown. For instance, in reference to King George III: He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people; He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers. For depriving us in many cases of the benefits of Trial by Jury. For taking away our Charters, abolishing our most valuable laws, and altering fundamentally the Forms of our Governments.
All of these laws and grievances were in the realm of positive law, specifically the common law system of England.
Historical Origins of the U.S. Legal System: English Common Law, Law in the Thirteen Colonies, Adversarial Nature of American Law, and a Unique Form of Federalism American law cannot be understood without an appreciation of both its English common law heritage and a unique form of federalism that is its foundation. Both are intimately intertwined with the origin and development of thirteen separate and diverse colonies of the British Empire. Federalism is a system of government that unites separate subsidiary governing units (states in the U.S.) under the authority of a central or “federal” government. Of course, the United States did not start out with a central authority. It began with thirteen politically distinct colonies, created at different times, but all under the English Crown. Virginia, Massachusetts (including land that later became the state of Maine), New Jersey, New York, and New Hampshire were owned by the King and governed by Royal Charter in which the Crown appointed governors. North and South Carolina were owned by Lord Proprietors selected by King Charles II but eventually became Royal colonies. Delaware, Pennsylvania, Georgia, and Maryland were proprietary colonies owned by an individual or a group who appointed governors who reported to the King. Rhode Island and Connecticut were charter colonies that were owned by the colonists via a joint-stock company. Charter colonies were self-governed and had greater independence than the other colonies. Massachusetts was a royal province but eventually was governed by a charter. All thirteen colonies had an appointed governor and governor’s council (or upper house), a court system, and an elected legislature (or lower house) but the character of these was different in each colony. The right to vote was limited to men who owned land, paid taxes, and were members of a Christian church. Town meetings played an important role in the New England colonies. The southern colonies had county level administration, and the middle colonies had a mixture of both. Further seeds of rebellion were inherent in the political organization of the colonies wherein colonial legislatures could do nothing contrary to the laws of England, their actions and bills could be vetoed by the governors, and all laws passed and approved by a governor could be vetoed by the King (except for the charter colonies). Each colony evolved in its own way. While slavery was widespread (e.g., in the late 1600s and early 1700s 40% of households in New York City had slaves), it was a more critical to the economic viability of the southern colonies. Although English colonists were the majority, Germans, French, Dutch, Scots, Irish, and Swedes had important demographic impact. Each colony was also religiously diverse with Roman Catholics, Anglicans, Presbyterians, Puritans, Baptists, Huguenots, and Quakers all playing important economic, political, and social roles in specific colonies. Given the ideological, cultural, and religious diversity of the American colonies, it is truly amazing that the Framers would be able to create a Constitution and federal republic out of thirteen separate legal systems, each with its own political and economic history. Of course, this diversity also sowed the seeds of trouble: those of states’ rights and slavery in the South. There was the advantage that the English colonists were dominant and the English language was the common tongue. More importantly, by the beginning of the 18th century the colonies had well-established court systems with trained, experienced lawyers and judges who had the English common law system as a model. This was necessitated in part by the need for business transactions in commerce. American jurists studied Sir William Blackstone's Commentaries on the Laws of England, a comprehensive treatise on English common law, and referenced it in developing the common law legal system of the United States. The specific grievances stated in the Declaration of Independence demonstrate that the colonists felt entitled to the rights that the English had under their common law system. Common law is law that is established by judges through court decisions. These decisions, or case law, become “precedent” for future decisions following the logic that controversies involving similar situations or sets of facts should be decided similarly. The accumulated weight of these precedents became the common law that is relevant, if not binding, on future decisions of the courts. In addition, laws passed by legislatures often obtain their meaning when adjudications of a statute by agency action are tested and interpreted by courts. It was under the reign of Henry II of England that judges were sent from his court at Westminster to ride “circuits” through the kingdom. With judges from the King’s Court charged with administering justice nationwide, local customs of unwritten law were rationalized and centralized, creating a powerful and unified court system, as well as a law “common” to the country as a whole. The decisions of judges during this time were recorded and filed and Ranulf de Glanvill wrote and organized the writing of the fourteen books of The Treatise on the Laws and Customs of the Kingdom of England (originally written in Latin in 1187-89 and first published in 1554). This book is a truly important historic document for the development of the common law in England because it codified the legal processes in place at that time and introduced the system of writs. Writs will be discussed in more detail shortly. Most significantly, a principle called stare decisis (“to stand by that which has been decided”) came into being whereby decisions and reasoning used by previous judges was used by later judges if the cases had similar facts. Trial by jury has been practiced in various forms during medieval times but was reintroduced by Henry II and eventually became standard for both civil and criminal actions. Along with this came another important legal practice that has been passed down to us in American law, that of trials being adversarial, contentious proceedings, in which plaintiffs bring lawsuits or prosecutors bring criminal charges against defendants, each present their case, and judges and/or juries serve as neutral arbiters and determine liability or guilt (see our companion website and Sidebar#5 “Juries and the Adversarial System”). After the Declaration of Independence, each of the thirteen independent states passed “reception statutes,” or Constitutions, that incorporated existing English common law as their own. The New York Constitution, adopted in 1777, provided that: XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy- five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration, respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and rejected. And this convention doth further ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same.
Writs and the Law Many have heard of the writ of habeas corpus. Fewer know that this Latin phrase meaning “produce the body” is found in Article 1 of the U.S. Constitution. Section 9 of Article 1 states in part that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” A writ is an order from a court, and a writ of habeas corpus is an order to “produce the body,” that is, an order to the government authority holding a person prisoner to produce such person and demonstrate a valid reason for his or her incarceration. To obtain a writ of habeas corpus, the attorney for the imprisoned individual files an application with the appropriate court. Habeas corpus rights have been and are currently and actively being litigated concerning detentions prior to deportation and Guantanamo detainees (see Boumediene v. Bush, 553 U.S. 723 (2008)). Presidents Lincoln and Roosevelt suspended this writ during the Civil War and WWII respectively. The Framers of the Constitution sought to prevent government authorities from imprisoning citizens without charging them with a crime and then keeping them from challenging their imprisonment. The Framers of the Constitution were acutely aware of this right because it had been abused by the British during the war for American independence. Writs in current use in the U.S. include subpoenas and warrants, as well as the writ of certiorari (“to be informed.”) In the U.S. plaintiffs or defendants who are unhappy with a decision of a lower court may petition for a writ of certiorari to a higher court. If granted, the higher court orders (through the writ) that the lower court send all of its records of the case in question to be reviewed by the higher court. The U.S. Supreme Court issues a writ of certiorari (“grants cert”) in about 85 cases each year (roughly 1% of the total petitions for certiorari). Of course, writs and the writ of habeas corpus came to us via English common law and have a long history going back to medieval times. The right to have a court determine the lawfulness of a prisoner’s detention was guaranteed by the Magna Carta. The right itself goes back to the Assize of Clarendon during the reign of Henry II, the formation of the royal court system and the consolidation of the common law. The courts of assize or assizes were local courts. To use an assize, a plaintiff had to obtain a writ from the King to proceed (i.e., permission to use his royal courts). This process was administered by a royal judge. Obtaining a writ was costly, so writs and the legal system were only available to those with financial resources. Because court documents were written in formal Latin or French, aggrieved civil litigants and criminal defendants generally needed to hire trained advocates (lawyers or barristers) with the expertise necessary to prepare writs, translate them for their clients, and convey the facts of their clients’ cases to the courts. Originally, permission from the king was required to use his courts and writs constituted a formal grant of the king’s permission. However, it was possible to obtain a writ and, thereby, permission to use the royal court, only if a potential litigant’s claim fit within the parameters of an existing writ. If the complaint did not fit the restrictive, predefined set of circumstances of a writ, then redress in the royal courts was not possible. These particular sets of circumstances to which writs applied were known as the “forms of action” and entailed a pre-established set of procedures and remedies. Today, the word “action” means a lawsuit, such as a civil or criminal action, and wrongdoings that may be redressed by a court are said to be “actionable.” In medieval England, however, many complaints about wrongdoings did not match the “form of action” provided by any of the existing writs and, so, the types of writs increased in variety over time but still many complaints had no avenue for redress. Palgrave’s Parliamentary Writs (1827) describes the nearly fifty types of writs developed by then. Look up, for instance, the Writ of Right, the various forms of the Writ of Assumpsit, or the Action of Detinue. With respect to the writ of habeas corpus, the Habeas Corpus Acts of 1640 and 1649 removed the authority of the king to arbitrarily detain people and made habeas corpus, a safeguard of individual liberty, into a general right of all citizens. Writs were no longer needed in Great Britain after the Forms of Action were abolished in 1832-33. Eventually writs were transformed into an order (or summons) for the parties to appear in court. The thirteen colonies inherited from England the common law writ system, with its rigid set of forms of action and types of relief. While the American system evolved and lingered longer than it did in Great Britain, it also suffered from the same limitations. These limitations were in part resolved by the legal concept of equity. Equity and Law The United States Constitution and its amendments repeatedly distinguish between cases at law and in equity. Article 3, Section 2 of the Constitution reads in part: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” The Seventh Amendment provides: “In Suits at common law….the right of trial by jury shall be preserved…” And the Eleventh Amendment reads “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” To understand “equity,” we must return to the English court system as it evolved from medieval times, when complainants applied to the King’s Court for the writ that matched their set of grievances. When no writ could be found to match their circumstances, legal redress was not possible. To provide judicial remedies in the absence of applicable writs, a court of equity was created where the Lord Chancellor sat as judge and jury. Only those of high social status were initially able to avail themselves of this court of equity. Nevertheless, this court was committed to fairness, that is, finding equitable solutions to legal issues that could not be redressed under by the writ system. A lord whose land had been illegally seized while he was away on the Crusades could, if a jury rules in his favor, only receive monetary compensation in a court of law (i.e., the writ system) but a court of equity could order the property be returned to him because this was fair and just relief. Initially, Lord Chancellors were churchmen. Without legal training, their decisions, while providing a measure of fairness and relief from the strictures of the writ system, could also seem arbitrary. When Sir Thomas More (for Catholics, Saint Thomas More, the patron saint of lawyers) was appointed Chancellor by Henry VIII, he became the first lawyer to hold the position. All subsequent Chancellors were lawyers. Lower courts of equity eventually came into being, and a system of precedents evolved making decisions of the courts of equity less arbitrary. So, courts of law, with their prescribed writs and forms of action, and courts of equity evolved separately. These separate systems of justice were inherited by the thirteen colonies and developed and survived in the United States until 1938, when the Federal Rules of Civil Procedure abolished the forms of action and established one “civil action.” Thus, remedies formerly available by only by writ became possible via a civil action. As a result, in a single proceeding, plaintiffs could seek remedies at law in the form of monetary compensation, known as “damages,” and equitable remedies, such as injunctions, that order the defendant to cease and desist or to perform a specific act. State courts have also unified law and equity in courts of general jurisdiction but Delaware still maintains separate courts of law and equity and Illinois and New Jersey have separate divisions for law and equity in a single court. Even where there has been a fusion of law and equity, equitable requests, such as for a temporary restraining order or a motion to dismiss, are heard and decided as before, by a judge alone. In most circumstances, a jury renders the verdict in cases where monetary damages are sought. Plaintiffs in many cases request both a “remedy at law” (damages) as well as injunctive relief. This is the essential motive force behind the eventual fusion of law and equity. In the U.S. a jury, unless waived by the defendant, is the arbiter of fact and applies applicable law to determine liability and amount of damages but equitable relief is still left to the determination of a judge. Stare Decisis, the Dynamic Nature of U.S. Law, and an Adversarial Legal System The common law may now seem a bit confusing because the term has been used both to distinguish common law from equity and to describe the legal system of England (including equity) that was inherited by the thirteen colonies and eventually the United States. In both cases, however, common law refers to law that is developed and determined by a system of courts, that is, judge-made law. Another singularly important aspect of English law that was inherited in both federal and state court systems is that, once a decision has been made by a court concerning a particular set of facts, another court reviewing similar facts is bound to reach the same decision. This is the principle of precedent that is also known as the doctrine of stare decisis (“to stand by that which has been decided”). While the doctrine of stare decisis provides a degree of predictability and might seem restrictive, it is also what gives U.S. law its dynamic nature. Binding precedent is a court decision that requires (except in unusual circumstances) a lower court in the same jurisdiction to apply the “rule” in cases with similar facts. Both federal and state appellate decisions are binding on lower courts in their jurisdiction. State supreme courts bind all lower courts in that state. The Supreme Court of the United States binds all courts. Precedents established in one jurisdiction are not binding on other jurisdictions. These precedents are considered persuasive authority. When binding precedent does not exist, attorneys research and use persuasive authority to bolster their arguments in their briefs and in oral arguments before the court. Tensions are created when courts in different jurisdictions decide cases with similar facts differently. Often, when such a tension occurs between federal appellate jurisdictions, the Supreme Court will hear the case, make a decision, and establish the precedent. Courts may not follow what seems to be a pertinent binding precedent because the facts and issues are considered to be slightly different leading to a different result. The new precedent is said to be distinguished from the previous ruling. When court decision is used to support a successful argument in another case, that decision becomes a precedent that has been affirmed. If this precedent is not overruled by a higher level court and is affirmed again and again in other cases, then this precedent becomes "good law." In Marbury v. Madison (1803) the Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution. This principle of judicial review has been affirmed consistently for over 200 years and is thus well-established, "good law" (see our companion website and Sidebar #3). Many precedents, some established over many years and used in many cases, are overturned or reversed by a higher court. Social, economic, and political changes in society, and shifting standards of behavior and morality, are often reflected by changes in case law. Reversal of the antimiscegenation statutes and case law by the Supreme Court in Loving v. Virginia (1967) invalidated Virginia’s Racial Integrity Act and similar laws in sixteen states. Stare decisis many times means to stand by what is right and to respond to changes in society. Indeed, stare decisis is, in reality, very dynamic. The sources of U.S. law will be discussed in detail later in this book but it is important to state here that the meaning and significance of all the statutes passed by federal and state legislatures and of all the regulations promulgated by federal and state administrative agencies are determined in the courts. The meaning of the Constitution itself is determined through case law. The passage of the Endangered Species Act in 1973 was momentous, but it was in Tennessee Valley Authority vs. Hill (1978) that the Supreme Court gave endangered species incalculable value that takes priority over all other considerations. Case law determined the significance and impact of this statute. TVA v. Hill and the Endangered Species Act will be discussed in detail later in this book. Lawyers (and their law clerks) must be thorough, efficient, and skillful as they research the cases (and precedents) related to the case and set of facts before them. Does the new case have a set of facts that distinguishes it from prior binding precedents? Are there relevant persuasive precedents in other jurisdictions? Attorneys are aided today by large legal libraries and especially by advanced online information technology. In medieval times in England most court decisions went unrecorded but were based on established customs and traditions and word of mouth. Eventually written records were kept and with the introduction of the printing press much more elaborate record keeping was possible and with it a solid foundation for stare decisis and the legal profession. Today, the enormous amount and complexity of litigation in the U.S. makes legal researching abilities critical for success. The most advanced legal databases such as LexisNexis and Westlaw are very costly. While they may be purchased by a law firm, a business, a library system, or a university, they are not available to the general public. This book emphasizes the development of legal research capabilities utilizing the best of the free online legal databases. Adversarial Legal System Trials in the U.S. are contentious, adversarial proceedings with lawyers for the plaintiffs or prosecutors and lawyers for the defense following rules of procedure while vying to win their case. These contests are often before a jury. Judges are neutral and play a role similar to that of a referee. Along with stare decisis the adversarial nature of the U.S. legal system is a defining and dynamic core value. This distinguishes the U.S. common law system from civil law systems where, for instance, trials are not adversarial and a magistrate typically serves the role of both the plaintiff’s attorney or prosecutor and defense attorney. Magistrates develop evidence and arguments for both sides that is presented to a “sitting judge” or panel of judges, who, in turn, play an active role and may interview witnesses before rendering a decision. Precedent plays little, if any, role in civil legal systems. Please see “Common Law and Civil Law Legal Systems” (Sidebar #4).