Skip to Main Content
It looks like you're using Internet Explorer 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If you continue with this browser, you may see unexpected results.

The Sources of Federal Law: The Judicial Branch

This LibGuide explains how laws are created by each of the three branches of the Federal government.

Inherited Law



The law of the United States was not created out of whole cloth with the founding of the United States. In 1776 the United States Congress passed a ‘reception statute’ that adopted the body of British common law that did not directly conflict with United State’s Constitution.

The United State’s common law varies from the British common law in that the Federal courts do not establish a broad base of law that extends over all the states; however, that was not always true. During the early period of the United States’ history the Federal courts and the state courts had two different bodies of common law. The dual levels of common caused a variety of conflicts between the Federal courts and the states' courts as well as conflicts in the law between the various Federal districts. The Supreme Court ended the conflicts with the case of Erie Railroad Co. v. Tompkins by stating in its opinion, “There is no general Federal common law.” Now Federal courts apply the common law of the state in which they are located. While this has helped reduce the number of conflicts a great deal, there are still occasionally splits in the law between the Circuit courts on some issues.


Judicial Branch Structure

The Judicial branch of the Federal government consists of the Supreme Court and the lower Circuit courts. The Constitution only explicitly creates the Supreme Court, in Article II section 1, but it allows for Congress to be able to create lesser courts as the need arises. Currently there are twelve regional Circuit courts.

In 1798 the Judiciary Act was passed. It created the judicial districts and the three tiered structure of the judicial branch. The tiers consist of the Supreme Court, the court of appeals, the ninety four district courts, and the two courts of special appeals.

The Supreme Court decides cases that raise questions about the federal government, arguments between the states, and cases that call for interpretations of the Constitution. The cases that the Supreme Court decides can have broad reaching impacts in the law, including declaring a law unconstitutional and nullifying it. The cases that the Supreme Court decides create precedent that all other courts must follow. The Supreme Court’s power of judicial review was defined by the Supreme Court itself in the case Marbury v. Madison in 1803.

There are three levels of federal courts with general jurisdiction. That means that they can decide criminal and civil cases between citizens that meet the courts’ jurisdictional requirements. The other courts, such as the bankruptcy courts, are limited in the kinds of cases that they can decide.

The district courts are the lowest level of the federal courts. Above the district courts are the Courts of Appeals which hear appeals from the decisions given to parties by the district courts.

The Supreme Court is the court of last resort and only hears a select few cases per year from appeals from Appeals Court decisions, decisions from state supreme courts, and a small number of cases that it has original jurisdiction over.

Cases decided by the Federal are published in judicial reporters. Reporters can cover a variety of topics from general Federal law to very specific areas such as patent or tax law. 

Federal law and state law have a complex and interwoven relationship. Under the Supremacy Clause and Article III Federal courts can decide state law cases if the parties involved have diversity jurisdiction. Federal law ‘trumps’ state law in most matters, but there are a few key exceptions that can arise that restrict either the Federal courts or state courts to decide on certain matters.

 Federal judges hold office for their lifetimes unless they die, retire, or resign. Federal judges can be involuntarily removed from office due to misbehavior through a process called impeachment, much like the President or any other government official.