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)
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)
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
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;
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.
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.)