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Differences Between Federal and State Common Law

Hillary Cyril | Editor, TechAnnouncer




One of my favorite movies is The Divorce Medicamento by Steve Martin. It is about a divorcing couple in their thirties. The movie deals with the normal everyday issues a divorce attorney would face. It is not a comedy. The Divorce Medicamento is a good watch for anyone who likes a good comedy.

The movie begins with the story of an attorney practicing in a small town on the West Coast. He must cope with the constant pressure from the opposing side of the divorce. His duties include defending his client’s case in the courts and making sure that the other half does not use any tricks to pull off the divorce. He has many major cases to defend such as the trial of a man accused of killing his wife.

The movie explores the differences between the federal government’s view of what the courts should do and the common law view. Federal court decisions are based on the US Constitution and the precedents of the previous generations of our country have set. Most jurisdictions are ruled by state Constitutions. Those jurisdictions also generally adhere to the common law rules about standing and procedure in divorce actions. Often in divorce actions, the parties cannot be separated legally unless they can prove irreconcilable differences regarding the children, finances, property, etc.


There are two views of the law in the USA – English common law and the uniform civil code. The federal government has, since the 12th amendment to the constitution, distanced itself from the interpretation of the law by the state courts. Currently, only a few states, Alaska, Arizona, Idaho, Massachusetts, Wisconsin, California, Rhode Island, Iowa, Maryland, Illinois, New Hampshire, Oregon, Connecticut, Illinois, and New Jersey have supreme court judges that interpret the law. Federal law does not recognize same-sex marriages.

There is also a difference between the federal common law system and the state system. The federal common law courts tend to issue more opinions that can be enforced by the federal administrative agencies such as the IRS or the Department of Homeland Security. The administrative agencies rely on federal statutes that were enacted by state legislatures. The federal administrative process requires that there be a case filed in federal court in order to move forward with an action. The federal common law courts tend to issue more opinions that can only be enforced if a case is filed in state court.

Historically, the federal common-law courts are interpreting executive orders and directives issued by federal government agencies. In many of these cases, the executive orders or directives are not intended to be adopted into state law. However, there may be situations where an agency is interpreting an order or directive for the states and is creating new state statutes that mirror many of the executive orders. Many state supreme court decisions have been reversed on appeal because of this concern. For example, in Florida v. Deeds, the state Supreme Court reversed the lower court ruling and ordered the Board of County Treasure appraised its property at an outrageous value. The Florida Supreme Court found that the lower court exceeded its power by issuing the appraisal order without having proper notice to the county treasurers as required by the state constitution.

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