Legal Fictions: State and Federal Law in the U.S.

legal padIn looking at how U.S. law works, it’s useful to remember the full name of the country: the United States of America. We’ve got 50 of those states, plus the District of Columbia (which ought to be a state), and various and sundry territories.

Every one of those states and territories has its own laws.

Of course, we’ve also got federal law, which applies to all of us. Sometimes federal and state law overlap; sometimes only one or the other applies.

To add to the confusion, U.S. law was built on several different European legal systems. While English common law provides the base for most state and federal law, Louisiana’s state law was built on the French system and property laws in the states ceded to the U.S. after the Mexican War are based on Spanish systems. That includes California and Texas, which together have more than a fifth of the U.S. population.

Just as an example: Texas and California use the community property system for determining which spouse gets what in a divorce or after a death. This system assumes – with a lot of exceptions – that property bought by a husband and wife during a marriage belongs to them jointly. So it has to be divided between them.

Other states divvy up the property based on the name on the title. But even then each puts in its own wrinkles.

That is, on some very basic issues like the rules for marriage, divorce, wills and estates, and inheritance, state laws in the U.S. differ quite a bit. And that’s not even getting to the controversial subjects, like marriage equality, assisted suicide, or use of marijuana.

Then there’s another can of worms: disputes between people who live in different states. There’s a whole body of law that addresses which state law applies, called “conflict of laws.” It also addresses international disputes, but there’s sufficient material in the U.S. to make specializing in that area profitable for lawyers who never deal with foreign matters.

Adding to that confusion: if a dispute between citizens of separate states is big enough, it may be heard in federal court even though it’s a state law matter. And the federal court will have to determine which state law applies.

The importance of state law in the U.S. dates back to the nation’s founding. The states then in existence had already been establishing local law independently and wanted to keep that right.

Another wrinkle of U.S. law also dates back to our early days: Native American nations have their own legal systems, governed in part by treaties with the U.S. and in part by rather patriarchal oversight by the federal government. Those nations have their own court systems and, in some cases, police, but they don’t have authority over all legal matters.

For example, the Sioux tribal courts hear misdemeanor charges against members of the Sioux nation who commit a minor crime on one of their reservations. But they have no authority over non-Indians on that reservation, even if they commit a crime. Felonies are handled by federal courts and the FBI.

To make things even stickier, a member of the Sioux nation who wishes to get divorced – even if the marriage is to another member and both live on the reservation – must go to state court in the appropriate county in South Dakota.

Both state and federal courts have appellate systems as well. Most states have trial courts, intermediate appeals courts, and a state supreme court. A few states skip the intermediate courts and the state supreme court doesn’t always use that name. (In New York, the “supreme” court is the trial court.) Most also have justices of the peace and other limited jurisdiction courts to hear minor disputes.

In the federal court system, the district courts hear trials, the circuit courts of appeal hear appeals from the district courts, and the U.S. Supreme Court hears appeals from the courts of appeal.

But the U.S. Supreme Court can also hear challenges to rulings of state supreme courts and – on occasion – from lower state courts if the dispute in question doesn’t go to the state supreme court. Such challenges must involve a federal question and usually have a claim that something is unconstitutional under the U.S. Constitution.

Many other nations have the same law nationwide, even on minor matters. However, nations that have been formed by joining together separate countries have some separate laws as well. For example, in the U.K., Scotland and Northern Ireland have their own legal system, though English law prevails in both England and Wales, and some laws apply throughout Great Britain.

The effort to develop the European Union has opened up some complicated issues, since the EU can, in some cases, overrule the law of a member nation. Of course, that nation can also withdraw from the E.U. It’s a looser confederation than the United States, where individual states cannot secede (we fought a war about that).

If you’re writing fiction with legal issues based in modern or historical time, it’s important to get your legal system right. Texas courts do not give divorced women alimony, but New York courts do. Possession of the same amount of marijuana might be a felony one place, a misdemeanor another, a very minor misdemeanor in a third, OK if you have a prescription in a fourth, and perfectly legal in Colorado and Washington state (as long as the federal government doesn’t decide to enforce federal laws against it in those jurisdictions).

And if you’re making up a legal system for a new planet, you should give some thought to how that planet came together. If it was settled by separate groups in separate locations who later decided to join together, you might well need to have a federal/state system something like the U.S.

Planet-wide government systems are popular in SF because they’re easier to describe, but there’s a reason why we don’t have one-world government on Earth: People are very attached to their historical ways of resolving disputes and they’re very afraid of other people’s systems

Don’t think this is an issue? Google one-world government. The second hit will be a Wikipedia article on world government conspiracy theories.



Legal Fictions: State and Federal Law in the U.S. — 10 Comments

  1. One reason why this planet does not have a single government is history.

    Aliens on their native planets would be in the same boat, but a planet colonized by a single colony that spread, would have it a lot easier. Especially with modern equivalent — or better — communications.

      • World history has always had a really limited set of real estate for colonization. And even so, quite large regions have been single colony.

        Depends on the details of how you arrive, to be sure. But if there were a FTL drive that allowed access to several thousand planets, I suspect that single colony would make a lot of sense.

        • If we’ve got lots of different governments and corporations sending expeditions — as happened when European nations were out “discovering” the rest of the world — I think multiple colonies on a world are more likely, especially if some planets are highly suitable for human habitation and/or are easier to get to. Seeding thousands of planets with one colony each sounds more like a one-world government sort of plan, and I’d be willing to argue that FTL — which many physicists mock as impossible — is more likely than one-world government on Earth.

          • Well, then, your scenario is different than mine, which posited thousands of possible worlds.

            Besides, if you go to the same system, you face the problem of quarrels. Your own world, you can do your own thing.

  2. Lee & Miller just did a Liaden Universe book called Trade Secret where the small but insistent thing pursued during the course of the protagonist’s adventures (which may not be so small) is resolved because of differences among ship law, planetary law, regional space laws, and laws dictated by totally different peoples.

    • That sounds intriguing. The more I write these posts, the more I discover about the importance of looking at law and governance in world building. And I keep discovering more books I should read, as if I didn’t already have too many on my list.

  3. Which is why, in the end, neither Burr nor Gen. Wilkinson were convicted of treason.

    In those early days, prior to the conclusion of the War of 1812, the concept of the United States of America was still nebulous, particularly for the most recent states, Kentucky and Tennessee, who didn’t see the federal government doing much for them, i.e. helping them with fighting and removal of Native peoples. So the the idea of seceding, going with Spain, or even setting up a separate domain / nation, wasn’t viewed by most people as a terrible treason to the USA, to which their own allegiance was less than tenuous — note how much of a role Andrew Jackson was playing and expected to play in what we now call Burr’s conspiracy.

    However, with the Louisiana Purchase, with all that land now available for settlement, expansion and as a huge buffer between Tennessee – Kentucky and Spanish territory — and with Napoléon’s crushing of Spain and the effects of that upon the administration aparatus, already creaking, upon the Spanish New World imperium — they were less interested in secession.

    This was what Gen. Wilkinson, the Spanish spy, who lived all his life in the West, understood, while Burr, from the east, continued to hold out-dated notions about how interested the west was in detaching itself from the U.S.

    So Wilkinson accomplished yet another betrayal, this time of Burr — the General who never won a battle but never lost a court-marshal … three times he went up on court marshal charges! and each time had his sword returned.

    Love, C.

  4. The closest to anything like the trajectory of conquest-settlement, colonialism, independence >>> conquest, etc. I’ve ever seen is in Kim Stanley Robinson. He tends to look at it through a lens more focused on the inevitable associated environmental degredation >>>> economic development as opposed to the actual legal constructions.

    Without those legal constructions of land title, transfers and associated contraction of Native hegemony and slave expansion our history would be very different. The men who made their fortunes out of this, via their training in surveyship and law (TJefferson did law, but not surveying, but his father was the surveyer — as was George Washington, who was one of the very few FF without a legal background — but his huge landgrant ownership in the Ohio Valley played a huge role in what he did with the army during the war of independence — directed against the Native peoples), were also founding fathers in their states and then the nascent nation. More locally you see those same names from the colonial eras still running things today, from the banks to political office and dominance of the state parties..

    The borderlands were where English, Spanish and French laws and titles all collided, with those of Native lands.

    It’s fascinating and something little understood or even known by early American historians, who don’t speak or read either Spanish or French — or, even they do, don’t choose to dig into the Spanish and French archives.

    But without doing that it is impossible to understand, for instance, the “Burr Conspiracy.”

    Love, C.