Comm-4313 -- Chapter 1: The Rule of Law: Law in a Changing Communication Environment

Two types of jurisdiction

1- General jurisdiction: Individual's home or a corporation's headquarters. 2- Specific jurisdiction: Online disputes Court should find the Three-part Test.

The rule of law requires laws to be:

1-General and not discriminatory, 2-widely known and disseminated, 3-forward-looking in their application rather than retroactive, 4-clear and specific, 5-self consistent and complementary of each other, 6-capable of being obeyed, 7-relatively stable over time, 8-and applied and enforced in ways that reflect their underlying intent.

There are six sources of laws of journalism and mass communication, what are they?

1. Constitutions, 2. Statutes 3. Common law 4. Equity law 5. Administrative law 6. Executive orders

What are the roles and responsibilities of the U.S. Constitution?

1. It establishes the character of government, organizes the federal government, and provides a minimum level of individual rights and privileges throughout the country. 2. U.S. Courts may (or may not) apply international laws. U.S. Constitution protects individual liberties.

What does the three branches do?

1. The executive branch oversees government and administers, or executes, laws. 2. The legislative branch enacts laws. 3. The judicial branch interprets laws and resolves legal conflicts.

subpoena

A command for someone to appear or testify in court or to turn over evidence, such as notes or recordings, with penalties for noncompliance.

grand jury

A group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt.

Forum shopping

A practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff's favor

Federalism

A principle according to which the states are related to yet independent of each other and are related to yet independent of the federal government.

Overbroad laws

A principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary.

tort

A private or civil wrong for which a court can provide remedy in the form of damages.

demurrer

A request that a court dismiss a case on the grounds that although the claims are true, they are insufficient to warrant a judgement against the defendant.

motion to dismiss

A request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way.

concurring opinion

A separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles.

dissenting opinion

A separate opinion of a minority of the court or a single judge or justice3 disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision.

amicus brief

A submission to the court from an amicus curiae, or "friend of the court," which are interested individuals or organizations that are parties in the case.

Enforcing administrative rules:

Administrative agencies enforce the administrative rules they adopt. They conduct hearings in which they interpret their rules, grant relief, resolve disputes and levy fines or penalties.

Examples of Statutory laws?

All criminal laws, rules of copyright, broadcasting, advertising and access to government meetings and information.

Supremacy Clause

Article IV, Pat 2 of the U.S. Constitution establishes that federal law takes precedence over, or supersedes, state laws.

What are the types of laws?

Clear laws, Good laws, Overbroad laws and Vague laws.

Guidance for judgements:

Courts look to each other's decisions for guidance.

What is the responsibility of the courts?

Courts must ensure that actions of the legislative and executive branches conform to the U.S. Constitution. The Court will defer to the lawmaking authority of the executive and legislative branches of the government by interpreting laws in ways that do not conflict with the Constitution.

Strict construction

Courts' narrow interpretation and application of a law based on the literal meaning of its language. Especially applied in interpreting the Constitution.

peremptory challenge

During jury selection, a challenge in which an attorney rejects a juror without showing a reason. Attorneys have the right to eliminate a limited number of jurors through peremptory challenges.

District court:

Each state contains at least one of the nation's 94 trial-level federal courts, which are called district courts.

Foundation:

English common law- English courts "discovered: the doctrines people had used to resolve disagreements. Common law arises in situations not covered expressly by statutes.

FEC/FTC/FCC create the rules:

FEC or FTC create the rules, regulations, orders and decisions that execute, or carry out, laws enacted by Congress. An alphabet soup of state and federal administrative agencies-such as the FCC, which oversees interstate electronic communication- incorporates both legislative and judicial functions.

Black-letter law

Formally enacted, written law that is available in legal reporters or other documents.

Common Law

Judge-made law composed of the principles and traditions established through court rulings; precedent-based law.

Jude made law:

Judges create the common law based on legal custom, tradition and prior court decisions.

textualists

Judges-in particular, Supreme Court justices- who rely exclusively on a careful reading of legal texts to determine the meaning of the law.

Significance:

Largest proportion of contemporary law.

Equity law

Law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy.

Vague laws

Laws that fail to define their terms or use language so general that it fails to inform citizens or judges with certainty what the laws permit or punish.

strict liability

Liability without fault; liability for any and all harms, foreseeable or unforeseen, which result from a product or an action.

de novo

Literally, "new" or "over again." On appeal, the court may review the facts de novo rather than simply reviewing the legal posture and process of the case.

en banc

Literally, "on the bench" but now meaning "in full court." The judges of a circuit court of appeals will sit en banc to decide important or controversial cases.

venire

Literally, "to come" or "to appear"; the term used for the location from which a court draws its pool of potential jurors, who must then appear in court for voir dire; a change of venire means a change of location from which potential jurors are drawn.

voir dire

Literally, "to speak the truth:; the questioning of prospective jurors to assess their suitability.

Laws are not inflexible case:

Marbury v. Madison case--In its landmark 1803, the Supreme Court established the courts' power to interpret laws.

Lowest level where nearly all cases begin:

Most court systems have three tiers: state, federal and specialized court systems. At the lowest level, trial courts are the courts where nearly all cases begin.

Rule of stare decisis:

Once a higher court has established a principle relevant to a certain set of facts, fairness requires lower courts to try to apply the same principle to similar facts. This establishes consistency and stability in the law.

Executive orders

Orders from a government executive, such as the president, a governor or a mayor, that have the force of law.

Judicial review:

Power to strike down laws the Court finds to be in conflict with the Constitution.

Constitutional review:

Preserve any portions of the law without violating the general intent.

Doctrines

Principles or theories of law that shape judicial decision making (e.g., the doctrine of content neutrality)

Political questions

Questions not subject to judicial review because they fall into areas properly handled by another branch of government.

Guidance for judgments:

Related to common law, but more flexible and not governed by precedent. Judges use their conscience to decide.

Equity law:

Second form of law made by judges when they apply general principles of ethics and fairness to determine the proper remedy for a legal harm. example of equity cases: 1971 Pentagon Papers and restraining orders against paparazzi

Threat to the fairness of trials:

Some judges view the routine media coverage of legal actions taking place in trial courts as a threat to the fairness of trial. Some judges also fear that media coverage will cast their court in disrepute and reduce public trust in the judicial system.

orginalists

Supreme Court justices who interpret the Constitution according to the perceived intent of its framers.

What it the driving force for change?

Technology, social, political, philosophical and economic changes.

What does the Bill of Rights and Constitution amendments accomplish?

The Bill of Rights expressly guarantees fundamental rights and limits government power.

discretion

The authority to determine the proper outcome.

Apply precedent:

The decision of a higher court establishes a precedent that binds lower court rulings.

holding

The decision or ruling of a court.

Stare decisis

The doctrine that courts follow precedent; the basis of common law, it literally means to stand by the previous decision.

Jurisdiction

The geographic or topical area of responsibility and authority of a court. Court's authority to hear a case: Independent court system in each state.

Deference

The judicial practice of interpreting statutes and rules by relying heavily on the judgements and intentions of the administrative experts and legislative agencies that enacted the laws.

Rule of Law

The legal standards that guide the proper and consistent creation and application of the law.

venue

The locality of a lawsuit and of the court hearing the suit. Thus, a change of venue means a relocation of a trial.

Administrative law

The orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties.

Precedent

The outcome of a previous case that establishes a rule of law for courts within the same jurisdictiont5o follow to determine cases with similar issues.

defendant

The party accused of violating a law, or the party being sued in a civil lawsuit.

appelle

The party against whom an appeal is made.

appellant

The party making the appeal; also called petitioner.

plaintiff

The party who files a complaint; the one who sues.

Facial meaning

The plain and straightforward meaning.

discovery

The pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered.

Construction

The process by which courts and administrative agencies determine the proper meaning and application of laws, rules and regulations.

summary judgement

The resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgement.

Constitutional law

The set of laws that establish the nature, functions and limits of government.

probable cause

The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.

Modify precedent:

To alter the precedent to respond to changed realities.

Modify precedent

To change rather than follow or reject precedent.

Distinguish from precedent

To justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities.

Distinguish from precedent:

To justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities.

Intent of the law:

To provide fair remedies for various harms that are not addressed in other forms of law.

affirm

To ratify, uphold or approve a lower court ruling.

What is the purpose of new laws?

To reflect evolving understandings of individual rights, liberties and responsibilities. Hence increase in the number of laws.

Over turn precedent:

To reject the fundamental premise of a precedent.

Overturn precedent

To reject the fundamental premise of a precedent.

Statutory law

Written law formally enacted by city, county, state and federal legislative bodies.

writ certiorari

a petition for review by the Supreme Court of the United States; certiorari means "to be informed of."

memorandum order

an order announcing the vote of the Supreme Court without providing an opinion.

per curiam opinion

an unsigned opinion by the Court as a whole.

due process

fair legal proceedings. Due process is guaranteed by the Fifth and 14th Amendments to the U.S. Constitution.

Who has the power to write laws?

lies with the publicly elected legislature.

Briefs

simplify and clarify a court's opinions by selecting the five most important elements of the decision. Briefs focus on key elements and set aside content that does not directly inform the court's decision.

moot

term used to describe a case in which the issues presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is susceptible to repetition but evades review.

Marbury v. Madison

the Supreme Court established the Court's power of judicial review-that is, the power to strike down laws the Court finds to be in conflict with the Constitution. The court gave itself the authority to limit the power of Congress to enact laws. John Marshall failed to deliver Marbury's commission. Conclusion: "logical reasoning" the Court dismissed the case for lack of jurisdiction but found that Congress' grant original power of mandamus to the Court violated the separation of power established in Article III of the Constitution.

original jurisdiction

the authority to consider a case at its inception, as contrasted with appellate jurisdiction.

What are the Federal Governments three branches?

the executive, the legislative, and the judicial.

FIRAC

the five components of a case brief. They are Facts, Issue, Rule of Law, Analysis (rationale) , and Conclusion (or holding).

overrule

to reverse the ruling of a lower court.

remand

to send back to the lower court for further action.