The Role and Regulation of the Lawyer in USA

STRUCTURE OF GOVERNMENT

The United States is a federalist system. The national government has specific, enumerated powers, and the fifty sovereign states retain substantial autonomy and authority. Both the national government and each state government is divided into executive, legislative and judicial branches. Written constitutions, both federal and state, form a system of separated powers, checks and balances among the branches.

NATIONAL-SUBNATIONAL RELATIONS

Although the Constitution sets forth the basic framework for national- subnational relationships in the U.S., many environmental statutes add detail to specific aspects of those relationships within the broader constitutional framework. For example, federal statutes might explicitly preempt, or explicitly waive any preemption of, state law.

SOURCES AND HIERARCHY OF LAW

The Constitution.
The Constitution of the United States is the "supreme law of the land;" it provides the basis for the U.S. government, and guarantees the freedom and rights of all U.S. citizens. No laws may contradict any of the Constitution's principles and no governmental authority in the U.S. is exempt from complying with it. The federal courts have the sole authority to interpret the Constitution and to evaluate the federal constitutionality of federal or state laws.
International Treaties.
Treaties made by the United States are the Supreme law of the land and under the U.S. Constitution, as are federal. In the case of a conflict between a treaty and a federal statute, the one that is later in time or more specific will typically control.

Judicial Opinions

The United States is a common law country. Every U.S. state has a legal system based on the common law, except Louisiana (which relies on the French civil code). Common law has no statutory basis; judges establish common law by applying previous decisions (precedents) to present cases. Although typically affected by statutory authority, broad areas of the law, most notably relating to property, contracts, and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states, and thus state courts are the primary source of common law. Federal common law is relatively narrow in scope; primarily limited to clearly federal issues that have not been addressed by a statute.

State Constitutions and Statutes.

State constitutions are the supreme law within the state. State statutes must conform to the respective state's constitution. All state constitutions and legislation can be preempted by federal legislation or the federal Constitution. Municipal charters, ordinances, rules, and regulations apply only to local issues; they typically can be preempted by either state or federal law.

ROLE OF THE EXECUTIVE IN THE LAW-MAKING PROCESS

The U.S. Executive Branch is responsible for implementing most laws passed by the Congress. Agencies in the executive branch issue rules, make adjudications and provide other opinions and guidelines in an effort to implement the laws. The Administrative Procedure Act (APA) governs these activities.The President also has the power to issue executive orders. Executive orders are Presidential directives governing actions by other federal officials and agencies. The President's authority over the executive branch is limited only by the Constitution and federal statutes.

Adjudications.

The second major type of agency action is an adjudication. Adjudications occur where the agency is making a binding, case-specific decision for example, siting, permitting, or licensing a particular activity or facility. In such instances the agencies are acting like courts in making decisions that settle specific disputes between parties or between the government and a party.

ROLE OF THE COURTS

The role of the judiciary is to decide cases and controversies between adversarial parties, including the government. Through the concept of stare decisis judicial decisions in U.S. jurisdictions can act as binding precedent for subsequent decisions. In most cases, when an appellate court makes a decision it not only decides who wins the specific case, but also provides a detailed written opinion that explains the basis for the court's decision to guide lower courts in handling future cases.

Common Law

The U.S. is a common law country. Every state is based on the common law, except Louisiana (which is based on the French civil code). Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts, and torts, are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states, and thus state courts are the primary source of common law. The area of federal common law is primarily limited to federal issues that have not been addressed by a statute.

Judicial Procedures.

All courts follow a strict set of procedural requirements. In 1938 the Supreme Court promulgated the Federal Rules of Civil Procedure, which are periodically updated and renewed by the U.S. Judicial Conference. They are uniform in all federal jurisdictions, although each federal court may also adopt additional rules. Every state court has its own set of rules, which are typically not as detailed or strict as the federal rules. In courts of original jurisdiction, judges are usually provided with juries to decide all questions of facts. The right to a jury is generally guaranteed by the federal Constitution in federal cases, and state constitutions typically contain similar provisions which apply in state cases.

Senate's Advice and Consent.

The Senate has several options. It can amend, make a reservation, issue a Senate "understanding" or "declaration" regarding the general issue, or make "statements regarding related issues of U.S. law."

Ratification.

After the Senate consents to a treaty, the President is free to ratify it. Ratification is the formal process declaring the willingness of the state to be bound by a treaty. Ratification is usually confirmed in a formal document called an "instrument of ratification."

Exchange and Deposit.

To be bound internationally, a state must exchange or deposit its instrument of ratification. It is this international act of exchange or deposit which allows the formal entry into force of a treaty, usually at a later specified date. Generally, bilateral treaties are exchanged, while multilateral treaties are deposited. If treaties are to be deposited, they usually state where and with whom.