Judicial Power in the United States
Hans A. Linde
Federalism implies two levels of government independently empowered to make and administer laws on behalf of the same citizens within the same territory. An important aspect of federal systems is whether these laws also are applied by separate courts.
The system of courts in the United States is easy to describe, but its operation is complex and difficult in practice. When making comparisons, a simple institutional description of a society's courts can be seriously misleading without also considering for what functions the society relies on general laws rather than discretionary authority.
Like most developed economies, the American economy rests on transactions among private parties under general laws without direct participation or intervention by government officials. It relies on private pursuit of civil damages or other judicial remedies for harm suffered from violations of law, which are separate from official enforcement of criminal law and administrative regulations. Therefore, the main focus of the American legal profession is much more on civil law, including actual or potential litigation, than it is in less developed or substantially socialized economies.
Unlike many federal systems, however, the United States historically left to the states the basic criminal and civil laws governing property, contracts, noncontractual duties (torts, fiduciary duties, restitution), and family relations, as well as independent power to impose taxes and regulations. National regulatory laws and taxes assume the existence of basic state civil and criminal laws, even when Congress superimposes national regulation of labor relations, financial institutions, environmental standards, or civil rights.