Law and the American Legal System The ever present law Everywhere All the time Everything seems to be decided by the courts 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 interests Conflict of rights The right to property But: The eminent domain The externalities (pollution) Conflict of interests Conflict 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 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 _____________________________________ State and local constitutions and rules 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 Frances Civil Code (known as the Napoleonic Code) of They are the models of todays 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. To be considered by the court the case must be JUSTICIABLE. CONTROVERSY: There is a real and substantial controversy. It cannot be academic or theoretical. A related rule forbids the federal courts to issue ADVISORY OPINIONS STANDING TO SUE: A party has sufficient stake in a controversy. The claimant has suffered an actual or threatened injury (separate rules govern taxpayers, organizations, legislators, and government entities) REMEDY: there are means to redress an injury or enforce a right RIPENESS: the harm asserted has matured sufficiently to warrant judicial intervention." MOOTNESS: The case was already solved or withdrawn. Civil cases: terminology Plaintiff 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: terminology Prosecution 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 courts actions (but not the facts) Appellant, Appellee Legal Brief Affirm, Modify, Reverse, Remand Opinions: majority, concurring, dissenting, plurality Cases involving federal constitutional questions may begin in either state or federal courts State trial courts State Appellate courts State Supreme Court Federal District Courts Federal Appelate Courts The U.S. Supreme Court 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.) VERY FEW end up in state supreme court FEDERAL COURTS 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 70 are granted a hearing. An example: In the 2014 term U.S. Circuit Courts of Appeals (1-11) = 46 U.S. Court of Appeals D.C. Circuit = 4 U.S. Federal Circuit (patents, trademarks, veterans, etc) = 3 U.S. District Courts = 3 ______________________________________ Total Federal = 56 The States = 14 _______________________________________ TOTAL = 70 The Supreme Court does not have to hear any appeal it does not want to hear The Rule of Four: At least four justices must agree on accepting a case for a review. A Writ of Certiorari: When the Supreme Court agrees to hear a case it issues a writ of certiorari (cert.) 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 question must be a constitutional question (there are certain exceptions) The 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; For example: Circuit 9 rules differently from Circuit 5 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 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. Scenario 4: 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 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.) Opinions and a constitutional dialogue After the oral argument, justices meet in conference to vote. Only nine justices, no clerks, no secretaries. If Chief Justice is in the majority, he will assign the case to himself or any other justice in the majority If Chief Justice is in the minority, the senior justice from the minority will assign the case. Majority opinions, Plurality opinions Concurring opinions Dissenting opinions Furman v. Georgia, (1972). Death penalty case One page per curiam opinion pages of concurrence and dissent. ConcurrenceDouglas ConcurrenceBrennan ConcurrenceStewart ConcurrenceWhite ConcurrenceMarshall Dissent Burger, joined by Blackmun, Powell, Rehnquist DissentBlackmun Dissent Powell, joined by Burger, Blackmun, Rehnquist Dissent Rehnquist, joined by Burger, Blackmun, Powell Obergefell v. Hodges (2015) Same sex marriage case The Opinion of the Court (majority) by Justice Kennedy, Joined by Ginsburg, Breyer, Sotomayor, and Kagan Dissent by Roberts, joined by Scalia and Thomas Dissent by Scalia, joined by Thomas Dissent by Thomas, joined by Scalia Dissent by Alito, joined by Scalia and Thomas Brown v. Board of Education (1954) The Opinion of the Court (unanimous) by Justice Warren