COMM 407
LAW AND THE AMERICAN
LEGAL SYSTEM
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
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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.
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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
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Ethics (or moral philosophy): The field
concerned with what is right and wrong
behavior.
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Usually divided into:
metaethics,
normative ethics,
and applied ethics
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Ethics
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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…
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Ethical standards regulate behavior. They
provide basis for social rules
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Ethical sanctions:
Social disapproval or social praise
Feeling of guilt or feeling of virtue
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From ethics to law…
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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:
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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
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The right to property
But:
The eminent domain
The externalities (pollution)
Conflict of interests
Conflict of rights
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The right to free speech
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But:
The right to privacy
The right to protect person’s 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.
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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).
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Statutory Law (written down, organized, usually as
codes, e.g., Penal Code)
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Administrative (decided by government agencies, e.g.,
FCC, FTC, or DMV at the state level)
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Executive Orders
Legal systems
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Most nations today follow one of two major legal
traditions:
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Civil Law (Roman Law or Continental law)
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Common Law (Anglo-American Law)
Legal systems today
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Civil Law (from Latin:
ius civile, the law
applicable to all Roman citizens; Roman Law)
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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)
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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
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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
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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
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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
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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
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Established in: Marbury v. Madison (1803)
Chief Justice Marshall in 1803
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“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
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International
Subject matter
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Courts of general jurisdiction (state or federal)
(the limitation is mainly territorial)
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Courts of limited jurisdiction (legislative):
set up by Congress for special purposes over some
specialized areas (e.g., bankruptcy, taxes,
immigration, military)
Territorial / Geographical
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Courts are authorized to hear and decide disputes
arising within a specified geographical jurisdiction
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All types of courts are divided into geographical
areas
(The Supreme Court is the exception)
Federal courts jurisdiction
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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.
California
District Courts (trial courts)
Superior Courts (trial courts)
Appellate Courts
Appellate Courts
The U.S. Supreme Court
California Supreme Court
Courts of the original jurisdiction
(trial courts)
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District courts (94) are courts of the original
jurisdiction. They have the authority to try a case
and decide it.
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In California the equivalent of District Courts are
Superior Courts (58)
The Superior Court of California
Courts of Appeals
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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
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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
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It must be JUSTICIABLE.
There must be a real and substantial controversy.
It cannot be academic, theoretical, or moot.
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Moot case: already solved or withdrawn
Remedy: the means to redress an injury or
enforce a right
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Civil cases
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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: terminology
Plaintiff v. Defendant (litigants)
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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
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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
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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
Dissent
Burger, joined by Blackmun,
Powell, Rehnquist
Dissent
Blackmun
Dissent
Powell, joined by Burger,
Blackmun, Rehnquist
Dissent
Rehnquist, joined by Burger,
Blackmun, Powell
How a case gets to the Supreme
Court?
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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
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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.)
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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
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The key principles:
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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;
U.S. Courts of Appeals
Scenario 2:
When a U. S. court of appeals…
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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…
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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
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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
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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:
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At least four justices must agree on accepting a
case for a review.
US Supreme Court
original jurisdiction
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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.)