Law and the American Legal System

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Law and the American Legal System

• COMM 407

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The ever present lawEverywhere All the time
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Everything seems to be decided by the courts
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Federal Regulations on 'Net Neutrality' Are
Voided, Clearing Way for New Fees

• Washington 01/14/2014. A three-judge panel of
  the U.S. Court of Appeals for the District of
  Columbia Circuit struck down federal rules
  requiring broadband providers to treat all
  Internet traffic equally.
• Adopted in 2010, the Federal Communications
  Commission rules said that companies like Verizon
  Communications Inc. had to treat all similar
  content on their networks equally, whether it was
  a YouTube video or a home video posted on a
  personal website.

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Ethics, Law, and Mass Communication

• Ethics (or moral philosophy) The field
  concerned with what is right and wrong behavior.
• Usually divided into
• metaethics,
• normative ethics,
• and applied ethics

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Ethics

• Metaethics questions of where our ethical
  principles come from (for example are they just
  social inventions?)
• Normative ethics prescriptions for our conduct,
  the duties that we should follow
• applied ethics examining specific controversial
  issues for example in media ethics

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From normative ethics (morality) to law

• Ethical standards regulate behavior. They
  provide basis for social rules
• Ethical sanctions
• Social disapproval or social praise
• Feeling of guilt or feeling of virtue

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From ethics to law

• The argument can be stated that where ethics
  (morality) is not followed, the law begins.
• With perfect agreement on morality, law would not
  be necessary
• That agreement is impossible in diverse
  communities or countries
• Thus the need for law

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The Ideal

• Laws should be used minimally
• reserved only for those that do not take into
  account the well being of the society.
• Law as control of behavior
• ALSO
• Law as an arbiter in conflict between people,
  their interests, and rights

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Conflict of interestsConflict of rights

• The right to property
• But
• The eminent domain
• The externalities (pollution)

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Conflict of interestsConflict of rights

• The right to free speech
• But
• The right to privacy
• The right to protect persons reputation
• The right to safety
• The right to fair trial
• And much more

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What is Law?

• Law is a body of rules enacted by public
  officials in a legitimate manner and backed by
  the force of the state
• Law is a body of rules of conduct governing the
  relationship between members of society (assures
  order and predictability).
• Legal sanctions Threat of specific punishment
  for disobeying the rules

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Sources of Law in the U.S.

• Constitutional Law U.S. Constitution is the
  ultimate (final, fundamental) source of law in
  the United States (as state constitutions are in
  the individual states).
• Statutory Law (written down, organized, usually
  as codes, e.g., Penal Code)
• Administrative (decided by government agencies,
  e.g., FCC, FTC, or DMV at the state level)
• Executive Orders

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Legal systems

• Most nations today follow one of two major legal
  traditions
• Civil Law (Roman Law or Continental law)
• Common Law (Anglo-American Law)

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Legal systems today

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Civil Law (from Latin ius civile, the law
applicable to all Roman citizens Roman Law)

• Origins in Ancient Greece, 6th Century BCE
• Expanded and perfected by the Romans in the next
  several centuries codified by the Emperor
  Justinian in the sixth century CE.
• The era of Enlightenment produced comprehensive,
  systematic national legal codes, especially
  Frances Civil Code (known as the Napoleonic
  Code) of 1804.
• They are the models of todays civil law systems.

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Civil law countries (examples)

• Most European countries Germany, France,
  Russia, Spain, Poland, Sweden, etc.
• China adopted Western civil law system after the
  Revolution of 1911, with strong Confucian and
  socialist (after 1948) influences.
• Japan adopted civil law system in 1896
• Almost all of Latin America

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Civil law

• Civil law codified law
• In civil law only legislative enactments are
  considered legally binding (not a judicial
  precedent as in common law)
• The interpretation of the law by the courts is
  rare and usually at the highest level only.
• Civil law is interpreted rather than developed or
  made by judges. Interpretation does not create
  precedent

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The Common Law

• The Common Law was conceived in 1066 and born of
  a union between older Saxon law and the custom of
  the Norman conquerors.
• The Common Law was nurtured in London lawcourts
  by judges and barristers.
• The Common Law spread only by conquest and
  colonization no one ever accepted it freely

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Common Law The role of precedent

• The common law is often created and refined by
  judges
• When there is no authoritative statement of the
  law, judges have the authority and duty to make
  law by creating precedent.
• The body of precedent is called "common law" and
  it binds future decisions (this principle is
  known as stare decisis to abide by decided
  cases)

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Common Law The role of precedent

• The precedent is the new guiding principle (new
  law).
• However although the presumption is on the side
  of the precedent, the precedent can be ignored,
  reversed or overruled.

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Judicial review

• The right of the federal courts to declare laws
  of Congress and acts of the executive branch void
  if they are judged to be in conflict with the
  Constitution
• Established in Marbury v. Madison (1803)

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Chief Justice Marshall in 1803

• It is emphatically the province and duty of the
  judiciary to say what the law is. Those who apply
  the rule to particular cases, must of necessity
  expound and interpret that rule. 1803

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The Structure of the Courts

• Jurisdiction the power of a court to decide a
  dispute
• Subject matter jurisdiction
• Territorial jurisdiction
• Hierarchy jurisdiction
• International

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Subject matter

• Courts of general jurisdiction (state or federal)
• (the limitation is mainly territorial)
• Courts of limited jurisdiction (legislative)
• set up by Congress for special purposes over
  some specialized areas (e.g., bankruptcy, taxes,
  immigration, military)

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Territorial / Geographical

• Courts are authorized to hear and decide disputes
  arising within a specified geographical
  jurisdiction
• All types of courts are divided into geographical
  areas
• (The Supreme Court is the exception)

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Federal courts jurisdiction

• To resolve legal disputes that arise under the
  laws passed by Congress and federal agencies, or
  the U.S. Constitution
• To resolve disputes between citizens of different
  states (diversity-of-citizenship cases), usually
  covers state laws

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Hierarchical U.S. and California(from lowest
to highest)

• The U.S.
• District Courts (trial courts)
• Appellate Courts
• The U.S. Supreme Court

• California
• Superior Courts (trial courts)
• Appellate Courts
• California Supreme Court

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Courts of the original jurisdiction (trial courts)

• District courts (94) are courts of the original
  jurisdiction. They have the authority to try a
  case and decide it.
• In California the equivalent of District Courts
  are Superior Courts (58)

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The Superior Court of California
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Courts of Appeals

• Courts of Appeals have appellate jurisdiction
  they have the power to review cases which have
  been already decided by lower courts.
• In U.S.
• 12 Federal Circuit Courts of Appeals (11
  multi-state one in D.C.),
• Federal Circuit (nationwide) for specialized
  cases, such as those involving patent laws and
  cases decided by the Court of International Trade
• In California 6 Courts of Appeals

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U.S. Courts of Appeals
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The Supreme Court of the United States
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Getting to Court The Story of a Lawsuit

• Civil action Action brought to enforce, redress,
  or protect private rights. All that does not
  fall into category of criminal action.
• Criminal action Action brought to punish crimes.
  Crime is a violation of penal law.

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Civil cases

• It must be JUSTICIABLE.
• There must be a real and substantial
  controversy. It cannot be academic, theoretical,
  or moot.
• Moot case already solved or withdrawn
• Remedy the means to redress an injury or
  enforce a right

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Civil cases

• STANDING TO SUE.
• A concept utilized to determine if a party has
  sufficient stake in an otherwise justiciable
  controversy. (If the party is sufficiently
  affected).

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Civil cases terminologyPlaintiff v. Defendant
(litigants)

• Complaint (answer/response)
• Pretrial Motions motion to dismiss (no legal
  basis for the trial), motion for summary judgment
  (no factual basis for the trial)
• Discovery gaining information
• Trial Jury, Preponderance of evidence standard
• Damages (money awards)
• Injunction (decided by judge)

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Criminal cases terminologyProsecution v.
Defendant

• Arrest, Criminal Complaint, Arraignment
• Preliminary hearing (or Grand Jury)
• Judges ruling (or indictment)
• Motions (e.g., to suppress evidence)
• Trial Beyond reasonable doubt
• Conviction, Sentencing

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Appeals terminology

• Examining lower courts actions
• (but not the facts)
• Appellant, Appellee
• Legal Brief
• Affirm, Modify, Reverse, Remand
• Opinions majority, concurring, dissenting,
  plurality

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Furman v. Georgia, (1972). One page per curiam
opinion 200 pages of concurrence and dissent.
Concurrence Douglas
Concurrence Brennan
Concurrence Stewart
Concurrence White
Concurrence Marshall
Dissent Burger, joined by Blackmun, Powell, Rehnquist
Dissent Blackmun
Dissent Powell, joined by Burger, Blackmun, Rehnquist
Dissent Rehnquist, joined by Burger, Blackmun, Powell
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How a case gets to the Supreme Court?

• From
• District Court (or state courts) to
• The Appellate courts to
• The Supreme Court
• BUT
• The Supreme Court does not have to hear any
  appeal it does not want to hear

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The case load in the U.S.state and federal

• State courts about 33,000,000 cases filed a
  year (20m civil and 13m criminal)
• 60,000,000 minor infractions (traffic etc.)
• District Courts about 300,000 lawsuits annually
• Almost 50,000 are appealed to one of the Circuit
  Courts of Appeals.
• U.S. Supreme Court receives approximately 7,000
  petitions for a hearing.
• Only about one hundred are granted a hearing.

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A writ of certiorari (cert.)

• When the Supreme Court agrees to hear a case it
  issues a writ of certiorari an order to the lower
  court requiring the latter to produce a certified
  record of a particular case.
• Practically an agreement to hear a case.

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The selection of cases

• The key principles
• the federal law must follow the United States
  Constitution
• There should not be a conflict / inconsistencies
  /contradictions between rulings of different
  courts

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Scenario 1 When a U. S. court of appeals

• has rendered a decision in conflict with the
  decision of another United States court of
  appeals on the same matter

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U.S. Courts of Appeals
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Scenario 2 When a U. S. court of appeals

• has decided a federal question in a way in
  conflict with a state court of the last resort

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Scenario 3 When a U. S. court of appeals

• has so far departed from the accepted and usual
  judicial proceedings as to call for an exercise
  of this Courts power of supervision

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Scenario 4When a state court of last resort

• has decided a federal question in a way in
  conflict with the decision of another states
  court of the last resort or of a United States
  court of appeals.

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Scenario 5 When a state court or U.S. court of
appeals

• a. has an important question of federal law
  which has not been, but should be settled by this
  Court
• b. has decided question in a way in conflict
  with applicable decisions of this Court.

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The Rule of Four

• At least four justices must agree on accepting a
  case for a review.

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US Supreme Court original jurisdiction

• to consider the facts and the law of a case
  without it having first been passed on by a lower
  court.
• the only original jurisdiction cases commonly
  handled by the Supreme Court are disputes between
  two or more U.S. states (e.g., boundary lines,
  water claims, etc.)