LAW AND THE AMERICAN LEGAL SYSTEM

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The ever present law…Everywhere… All the time…

Everything seems to be decided by the courts

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.

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

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

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

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

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

Conflict of interestsConflict of rights

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

Conflict of interestsConflict of rights

The right to free speech But: The right to privacy The right to protect person’s reputation The right to safety The right to fair trial And much more

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

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

Legal systems

Most nations today follow one of two major legal traditions:

Civil Law (Roman Law or Continental law)

Common Law (Anglo-American Law)

Legal systems today

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 France’s Civil Code (known as the Napoleonic Code) of 1804.

They are the models of today’s civil law systems.

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

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

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

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)

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.

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)

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

The Structure of the Courts

Jurisdiction: the power of a court to decide a dispute

Subject matter jurisdiction Territorial jurisdiction Hierarchy jurisdiction

International

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)

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)

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

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

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)

The Superior Court of California

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

U.S. Courts of Appeals

The Supreme Court of the United States

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.

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

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).

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)

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

Appeals: terminology

Examining lower court’s actions

(but not the facts) Appellant, Appellee Legal Brief Affirm, Modify, Reverse, Remand Opinions: majority, concurring, dissenting,

plurality

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

DissentBurger, joined by Blackmun, Powell, Rehnquist

Dissent Blackmun

DissentPowell, joined by Burger, Blackmun, Rehnquist

DissentRehnquist, joined by Burger, Blackmun, Powell

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

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.

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.

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

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;

U.S. Courts of Appeals

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

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 Court’s power of supervision

Scenario 4:When a state court of last resort

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

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.

The Rule of Four:

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

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.)