Unit 1 - Foundations of Law

1. What are the primary sources of law in the U.S.?

(1) constitutions—both state and federal, (2) statutes and agency regulations, and (3) judicial decisions. (4)) In addition, chief executives (the president and the various governors) can issue executive orders that have the effect of law. - these laws sometimes conflict: a state law may conflict with a federal law, or a federal law might be contrary to an international obligation.

Functions of the Law

(1) keep the peace (2) maintain the status quo, (3) preserve individual rights, (4) protect minorities against majorities, (5) promote social justice, and (6) provide for orderly social change.

Separation of powers

- Because the Founding Fathers wanted to ensure that no single branch of the government, especially the executive branch, would be ascendant over the others, they created various checks and balances to ensure that each of the three principal branches had ways to limit or modify the power of the others. * This is known as the separation of powers. - Thus the president retains veto power, but the House of Representatives is entrusted with the power to initiate spending bills. The judiciary can declare a statute unconstitutional, and the Congress can amend the law to comport with the Constitution. --> From Marbury to the present day, the Supreme Court articulated the view that the US Constitution sets the framework for all other US laws, whether statutory or judicially created. Thus any statute (or portion thereof) or legal ruling (judicial or administrative) in conflict with the Constitution is not enforceable. And as the Bush v. Gore decision indicates, the states are not entirely free to do what they might choose; their own sovereignty is limited by their union with the other states in a federal sovereign. * The general philosophy behind the call for "strict constructionist" justices is that legislatures make laws in accord with the wishes of the majority, and so unelected judges should not make law according to their own views and values.

dormant commerce clause

- Congress has the power to legislate under the commerce clause and often does legislate. For example, Congress might say that trucks moving on interstate highways must not be more than seventy feet in length. But if Congress does not exercise its powers and regulate in certain areas (such as the size and length of trucks on interstate highways), states may make their own rules. - States may do so under the so-called historic police powers of states that were never yielded up to the federal government. - These police powers can be broadly exercised by states for purposes of health, education, welfare, safety, morals, and the environment. But the Supreme Court reserved for itself the power to determine when state action is excessive, even when Congress has not used the commerce clause to regulate. - This power is claimed to exist in the dormant commerce clause. ---> There are two ways that a state may violate the dormant commerce clause. If a state passes a law that is an "undue burden" on interstate commerce or that "discriminates" against interstate commerce, it will be struck down. Kassel v. Consolidated Freightways, 450 US 662 (1981), is an example of a case where Iowa imposed an undue burden on interstate commerce by prohibiting double trailers on its highways. Iowa's prohibition was judicially declared void when the Supreme Court judged it to be an undue burden. - Discrimination cases such as Hunt v. Washington Apple Advertising Commission 432 U.S. 333 (1977), pose a different standard. The court has been fairly inflexible here: if one state discriminates in its treatment of any article of commerce based on its state of origin, the court will strike down the law. - In Hunt, the Court found that a North Carolina statute requiring that all apples sold or shipped into North Carolina in closed containers be identified by no grade on the containers other than the applicable federal grade or a designation that the apples are not graded was a violation of the Commerce Clause as overly burdensome to Washington state apples sold interstate. The North Carolina statute did not effect North Carolina apple growers and was therefor unconstitutional.

Procedural laws

- In contrast to substantive laws, procedural laws are the rules of courts and administrative agencies. - They tell us how to proceed if there is a substantive-law problem. -> For example, if you drive fifty-three miles per hour in a forty mileper-hour zone on Main Street on a Saturday night and get a ticket, you have broken a substantive rule of law (the posted speed limit). Just how and what gets decided in court is a matter of procedural law. Is the police officer's word final, or do you get your say before a judge? If so, who goes first, you or the officer? Do you have the right to be represented by legal counsel? Does the hearing or trial have to take place within a certain time period? A week? A month? How long can the state take to bring its case? What kinds of evidence will be relevant? Radar? (Does it matter what kind of training the officer has had on the radar device? Whether the radar device had been tested adequately?) The officer's personal observation? (What kind of training has he had, how is he qualified to judge the speed of a car, and other questions arise.) What if you unwisely bragged to a friend at a party recently that you went a hundred miles an hour on Main Street five years ago at half past three on a Tuesday morning? (If the prosecutor knows of this and the "friend" is willing to testify, is it relevant to the charge of fifty-three in a forty-mile-per-hour zone?) - In the United States, all state procedural laws must be fair, since the due process clause of the Fourteenth Amendment directs that no state shall deprive any citizen of "life, liberty, or property," without due process of law. (The $200 fine plus court costs is designed to deprive you of property, that is, money, if you violate the speed limit.) Federal laws must also be fair, because the Fifth Amendment to the US Constitution has the exact same due process language as the Fourteenth Amendment.

International Legal System's sources of law

- In international legal systems, sources of law include (1) treaties (agreements between states or countries), and (2) what is known as international law (usually consisting of judicial decisions from national court systems where parties from two or more nations are in a dispute).

Legal Positivism: Law as Sovereign Command

- Law is only law if it comes from a recognized authority and can be enforced by that authority, or sovereign — such as a king, a president, or a dictator—who has power within a defined area or territory. - Positivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile. - examining in a precise way what the rule itself says, is sometimes known as the "positivist" school of legal thought. * The second approach—which relies on social context and the actual behavior of the principal actors who enforce the law—is akin to the "legal realist" school of thought. - Positivism has its limits and its critics. * Depending on the law, people might question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out. - The positive-law school of legal thought would recognize the lawmaker's command as legitimate; questions about the law's morality or immorality would not be important. *In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law.

Substantive laws

- Many rules and regulations in law are substantive, and others are procedural. We are used to seeing laws as substantive; that is, there is some rule of conduct or behavior that is called for or some action that is proscribed (prohibited). - The substantive rules tell us how to act with one another and with the government. -For example, all of the following are substantive rules of law and provide a kind of command or direction to citizens: • Drive not more than fifty-five miles per hour where that speed limit is posted. • Do not conspire to fix prices with competitors in the US market. • Do not falsely represent the curative effects of your over-the-counter herbal remedy. • Do not drive your motor vehicle through an intersection while a red traffic signal faces the direction you are coming from. • Do not discriminate against job applicants or employees on the basis of their race, sex, religion, or national origin. • Do not discharge certain pollutants into the river without first getting a discharge permit.

Fifth Amendment

- The Fifth Amendment states, "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." -The Fifth Amendment has three principal aspects: (1) procedural due process - In terms of procedural due process, the amendment prevents government from arbitrarily taking the life of a criminal defendant. In civil lawsuits, it is also constitutionally essential that the proceedings be fair. - This is why, for example, the defendant in Burger King v. Rudzewicz, 471 U.S. 462 (1985), had a serious constitutional argument, even though he lost. In Burger King, the Defendants were Michigan residents and franchisees of Burger King, a Florida corporation. The franchise agreement provided that in the event of suit, the courts in Florida would be the proper forum for all cases (known as a forum selection clause). Burger King sued for non-payment of franchise fees in federal court in Florida under diversity jurisdiction. The Defendants moved to dismiss arguing Florida did not have personal jurisdiction over the out of state Defendants. In finding for Burger King, the Supreme Court held that where the parties have agreed to a forum selection clause in their agreement and one of the parties is a corporation located within the forum state (Florida), unless undue hardship exists, the forum selection clause is valid and not a violation of due process. (2) the takings clause The takings clause of the Fifth Amendment ensures that the government does not take private property without just compensation. In the international setting, governments that take private property engage in what is called expropriation. The standard under customary international law is that when governments do that, they must provide prompt, adequate, and effective compensation. This does not always happen, especially where foreign owners' property is being expropriated. The guarantees of the Fifth Amendment (incorporated against state action by the Fourteenth Amendment) are available to property owners where state, county, or municipal government uses the power of eminent domain to take private property for public purposes. Just what is a public purpose is a matter of some debate. (3) substantive due process. During the first third of the 20th century, the Supreme Court often nullified state and federal laws using substantive due process. In 1905, for example, in Lochner v. New York, 198 U.S. 45 (1905), the Supreme Court voided a New York statute that limited the number of hours that bakers could work in a single week. New York had passed the law to protect the health of employees, but the court found that this law interfered with the basic constitutional right of private parties to freely contract with one another. Over the next 30 years, dozens of state and federal laws were struck down that aimed to improve working conditions, secure social welfare, or establish the rights of unions. However, in 1934, during the Great Depression, the court reversed itself and began upholding the kinds of laws it had struck down earlier. Since then, the court employed a two-tiered analysis of substantive due process claims. Under the first tier, legislation on economic matters, employment relations, and other business affairs is subject to minimal judicial scrutiny. This means that a law will be overturned only if it serves no rational government purpose. Under the second tier, legislation concerning fundamental liberties is subject to "heightened judicial scrutiny," meaning that a law will be invalidated unless it is "narrowly tailored to serve a significant government purpose." - The Supreme Court stressed that he word liberty cannot be defined by a definitive list of rights; rather, it must be viewed as a rational continuum of freedom through which every aspect of human behavior is protected from arbitrary impositions and random restraints. In this regard, as the Supreme Court has observed, the due process clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination

Fourteenth Amendment

- The Fourteenth Amendment (1868) requires that states treat citizens of other states with due process. This can be either an issue of procedural due process (as in Burger King v. Rudzewicz) or an issue of substantive due process. - "Equal protection of the laws" is a phrase that originates in the Fourteenth Amendment, adopted in 1868. - The amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This is the equal protection clause. It means that, generally speaking, governments must treat people equally. Unfair classifications among people or corporations will not be permitted. A well-known example of unfair classification would be race discrimination: requiring white children and black children to attend different public schools or requiring "separate but equal" public services, such as water fountains or restrooms. Yet despite the clear intent of the 1868 amendment, "separate but equal" was the law of the land from 1896 in Plessy v. Ferguson, 163 US 537 (1896), until Brown v. Board of Education, 347 U.S. 483 (1954). -To know what classifications are permissible under the Fourteenth Amendment, we need to know what is being classified. The court has created three classifications, and the outcome of any equal protection case can usually be predicted by knowing how the court is likely to classify the case: (1) Minimal scrutiny: economic and social relations. Government actions are usually upheld if there is a rational basis for them. (2) Intermediate scrutiny: gender. Government classifications are sometimes upheld. (3) Strict scrutiny: race, ethnicity, and fundamental rights. Classifications based on any of these are almost never upheld. Under minimal scrutiny for economic and social regulation, laws that regulate economic or social issues are presumed valid and will be upheld if they are rationally related to legitimate goals of government. For example, if the city of New Orleans limits the number of street vendors to some rational number (more than one but fewer than the total number that could possibly fit on the sidewalks), the local ordinance would not be overturned as a violation of equal protection. Under intermediate scrutiny, the city of New Orleans might limit the number of street vendors who are men. For example, suppose that the city council decreed that all street vendors must be women, thinking that would attract even more tourism. A classification like this, based on sex, will have to meet a sterner test than a classification resulting from economic or social regulation. A law like this would have to substantially relate to important government objectives. Increasingly, courts have nullified government sex classifications as societal concern with gender equality has grown. See United States v. Virginia, 518 US 515 (1996) (where the US Government successfully sued the Virginia Military Institute, a male only educational institution, arguing its male only admission policy was a violation of the Equal Protection Clause). - Suppose, however, that the city of New Orleans decided that no one of Middle Eastern heritage could drive a taxicab or be a street vendor. That kind of classification would be examined with strict scrutiny to see if there was any compelling justification for it. As noted, classifications such as this one are almost never upheld. The law would be upheld only if it were necessary to promote a compelling state interest. Very few laws that have a racial or ethnic classification meet that test. - The strict scrutiny test will be applied to classifications involving racial and ethnic criteria as well as classifications that interfere with a fundamental right.

Fourth Amendment

- The Fourth Amendment says, "all persons shall be secure in their persons, houses, papers, and effects from unreasonable searches and seizures, and no warrants shall issue, but upon probable cause, before a magistrate and upon Oath, specifically describing the persons to be searched and places to be seized." - The Supreme Court has read the Fourth Amendment to prohibit only those government searches or seizures that are "unreasonable." Because of this, businesses that are in an industry that is "closely regulated" can be searched more frequently and can be searched without a warrant. - Because the literal language of the Fourth Amendment protected "persons, houses, papers, and effects," anything searched by the government in "open fields" was reasonable. (The court's opinion suggested that if Dow had really wanted privacy from governmental intrusion, it could have covered the pipes and machinery that were otherwise outside and in open fields.) - Note again that constitutional guarantees like the Fourth Amendment apply to governmental action. Your employer or any private enterprise is not bound by constitutional limits. For example, if drug testing of all employees every week is done by government agency, the employees may have a cause of action to object based on the Fourth Amendment. However, if a private employer begins the same kind of routine drug testing, employees have no constitutional arguments to make; they can simply leave that employer.

Common Law

- The common law consists of decisions by courts (judicial decisions) that do not involve interpretation of statutes, regulations, treaties, or the Constitution. - Courts make such interpretations, but many cases are decided where there is no statutory or other codified law or regulation to be interpreted. For example, a state court deciding what kinds of witnesses are required for a valid will in the absence of a rule (from a statute) is making common law. - United States law comes primarily from the tradition of English common law. By the time England's American colonies revolted in 1776, English common-law traditions were well established in the colonial courts. - English common law was a system that gave written judicial decisions the force of law throughout the country. Thus if an English court delivered an opinion as to what constituted the common-law crime of burglary, other courts would stick to that decision, so that a common body of law developed throughout the country. - Common law is essentially shorthand for the notion that a common body of law, based on past written decisions, is desirable and necessary. - In England and in the laws of the original thirteen colonies, common-law decisions defined crimes such as arson, burglary, homicide, and robbery. - As time went on, US state legislatures either adopted or modified common-law definitions of most crimes by putting them in the form of codes or statutes. This legislative ability—to modify or change common law into statutory law—points to an important phenomenon: the priority of statutory law over common law. - the judge would reason that since a current case was pretty much like a prior case, it ought to be decided the same way. This is essentially reasoning by analogy. Thus the use of precedent in common-law cases came into being, and a doctrine of stare decisis(pronounced STAR-ay-de-SIGH-sus) became accepted in English courts. Stare decisis means, in Latin, "let the decision stand." - Most judicial decisions that don't deal with criminal law will involve one of three areas of law—property, contract, or tort. Property law deals with the rights and duties of those who can legally own land (real property), how that ownership can be legally confirmed and protected, how property can be bought and sold, what the rights of tenants (renters) are, and what the various kinds of "estates" in land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with what kinds of promises courts should enforce. For example, should courts enforce a contract where one of the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract. If you slipped and fell in the neighborhood store- your remedy would be in tort for personal injury. The thirteen original colonies had been using English common law for many years, and they continued to do so after independence from England. Early cases from the first states are full of references to already-decided English cases. As years went by, many precedents were established by US state courts, so that today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is quite rare. Courts in one state may look to common-law decisions from the courts of other states where the reasoning in a similar case is persuasive. This will happen in "cases of first impression," a fact pattern or situation that the courts in one state have never seen before. But if the supreme court in a particular state has already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by their highest court. - The common-law tradition is unique to England, the United States, and former colonies of the British Empire. - The main alternative to the common-law legal system was developed in Europe and is based in Roman and Napoleonic law. A civil-law or code-law system is one where all the legal rules are in one or more comprehensive legislative enactments. - "The law is in the code, not in the cases." - "Where several cases all have interpreted a provision in a particular way, the French courts may feel bound to reach the same result in future cases, under the doctrine of jurisprudence constante. The major agency for growth and change, however, is the legislature, not the courts." - Civil-law systems are used throughout Europe as well as in Central and South America. Some nations in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside of Europe, and many of these colonies adopted the legal practices that were imposed on them by colonial rule, much like the original thirteen states of the United States, which adopted English common-law practices. One source of possible confusion at this point is that we have already referred to US civil law in contrast to criminal law. But the European civil law covers both civil and criminal law.

Natural Law: based on a universal moral order

- The natural-law school of thought emphasizes that law should be based on a universal moral order. - Natural law was "discovered" by humans through the use of reason and by choosing between that which is good and that which is evil. - "Natural law" represents standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will." - The US Declaration of Independence embodies a natural-law philosophy. * Both the US Constitution and the United Nations (UN) Charter have an affinity for the natural-law outlook, as it emphasizes certain objective norms and rights of individuals and nations. - " The Unanimous Declaration of the Thirteen United States of America July 4, 1776 When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...." (pg 6) -Civil disobedience—in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.— becomes a matter of morality over "unnatural" law. - For example, in his "Letter from Birmingham Jail," Martin Luther King Jr. claims that obeying an unjust law is not moral and that deliberately disobeying an unjust law is in fact a moral act that expresses "the highest respect for law." "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law....One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty." (pg 6)

Federalism

- The partnership created in the Constitution between the states and the federal government is called federalism. - The Constitution is a document created by the states in which certain powers are delegated to the national government, and other powers are reserved to the states. This is made explicit in the Tenth Amendment.

Jurisprudence

- There are different schools (or philosophies) concerning what law is all about. - Philosophy of law is also called jurisprudence, and the two main schools are: (1) legal positivism, and (2) natural law. *Although there are others, these two are the most influential in how people think about the law.

Equitable Remedies versus Legal Remedies

- What do we mean by a remedy in terms of law? A remedy is what you (as the plaintiff) are asking the court to do for you. Do you want monetary damages? Do you want the defendant to be prohibited from doing something, such as playing their radio at 11:00 pm at night? Do you want the defendant to have to do something, such as complete their agreement to sell you their house? The action you are asking a court to take is what lawyers refer to as remedies. - There are two main categories of remedies - (1) legal remedy - Legal are the easiest to understand - this is money. You are asking the court to award you monetary damages (2) equitable remedy - Equitable damages is where you are asking the court to have the defendant do something or to stop from doing something. Equitable damages are typically used when money alone will not make the plaintiff whole or compensate them for the harm they are claiming. For example, you enter into a contract to buy the defendant's house. Everything seems fine and you are ready to settle on the property. Suddenly the defendant changes his mind and tells you he does not want to sell you his house- he has decided not to move. You had your heart set on the house and still want to buy it. You can sue the defendant and ask the court for the equitable remedy called specific performance. Specific performance is where the court will order the defendant to attend settlement and sell you the property. - Another type of equitable remedy is an injunction. This is used to stop the defendant from doing something. For example, your neighbor decides he is going to practice with his heavy metal band every night from 11:00 pm-2:00 am, which keeps you awake. You can file suit asking the court to issue an injunction to prevent your neighbor from practicing at this hour as it violates local noise ordinances. Other types of equitable damages include contract reformation and contract rescission which will be covered more in the section on Contract Performance, Breach and Remedies.

3. What constitutional clause gives the federal government the power to regulate commercial activities among the various states?

--> State Courts and the Domain of State Law In the early years of our nation, federal courts were not as active or important as state courts. States had jurisdiction (the power to make and enforce laws) over the most important aspects of business life. The power of state law has historically included governing the following kinds of issues and claims: • Contracts, including sales, commercial paper, letters of credit, and secured transactions • Torts • Property, including real property, bailments of personal property (such as when you check your coat at a theater or leave your clothes with a dry cleaner), trademarks, copyrights, and the estates of decedents (dead people) • Corporations • Partnerships • Domestic matters, including marriage, divorce, custody, adoption, and visitation • Securities law • Environmental law • Agency law, governing the relationship between principals and their agents. • Banking • Insurance - Over the past eighty years, however, federal law has become increasingly important in many of these areas, including banking, securities, and environmental law. ____ -Take a look at Article I, Section 8 of the U.S. Constitution listed below- this is known as the Commerce Clause. The commerce clause gives Congress the exclusive power to make laws relating to foreign trade and commerce and to commerce among the various states. - Most of the federally created legal environment springs from this one clause: if Congress is not authorized in the Constitution to make certain laws, then it acts unconstitutionally and its actions may be ruled unconstitutional by the Supreme Court. - Lately, the Supreme Court has not been shy about ruling acts of Congress unconstitutional. - Here are the first five parts of Article I, Section 8, which sets forth the powers of the federal legislature. The commerce clause is in boldface. It is short, but most federal legislation affecting business depends on this very clause: --> Section 8 [Clause 1] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [Clause 2] To borrow Money on the credit of the United States; *****[Clause 3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; [Clause 4] To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; [Clause 5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; - Congress had the power to protect the channels of interstate commerce: "If the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to, and the enslavement in prostitution and debauchery of women, and, more insistently, of girls." Hoke v. United States, 227 US 308 (1913). - In each of those instances, the Supreme Court said, "[T]he use of interstate transportation was necessary to the accomplishment of harmful results." In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended. But in Hammer that essential element was lacking. The law passed by Congress aimed to standardize among all the states the ages at which children could be employed in mining and manufacturing, while the goods themselves are harmless. Once the labor is done and the articles have left the factory, the "labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power." Hammer v. Dagenhart, 247 U.S. 251 (1918) In short, the early use of the commerce clause was limited to the movement of physical goods between states. Just because something might enter the channels of interstate commerce later on does not make it a fit subject for national regulation. The production of articles intended for interstate commerce is a matter of local regulation. The court therefore upheld the result from the district and circuit court of appeals; the application of the federal law was enjoined. Goods produced by children under the age of fourteen could be shipped anywhere in the United States without violating the federal law.

Constitution

-> General Structure of the Constitution: - Notice that there are seven articles, starting with Article I (legislative powers), Article II (executive branch), and Article III (judiciary). - Notice that there is no separate article for administrative agencies. The Constitution also declares that it is "the supreme Law of the Land" (Article VI). - Following Article VII are the ten amendments adopted in 1791 that are referred to as the Bill of Rights. - Notice also that in 1868, a new amendment, the Fourteenth, was adopted, requiring states to provide "due process" and "equal protection of the laws" to citizens of the United States.

4. What is the Bill of Rights?

-The Bill of Rights (the first ten amendments to the Constitution) was originally meant to apply to federal actions only. - During the twentieth century, the court began to apply selected rights to state action as well. For example, federal agents were prohibited from using evidence seized in violation of the Fourth Amendment, but state agents were not, until Mapp v. Ohio, 367 U.S. 643 (1960), when the Supreme Court applied the guarantees (rights) of the Fourth Amendment to state action as well. - In this and in similar cases, the Fourteenth Amendment's due process clause was the basis for the Court's action. The due process clause commanded that states provide due process in cases affecting the life, liberty, or property of US citizens, and the court saw in this command certain "fundamental guarantees" that states would have to observe. Over the years, most of the important guarantees in the Bill of Rights came to apply to state as well as federal action. The court refers to this process as selective incorporation. --> The guarantees of the Bill of Rights apply only to state and federal government action. - They do not limit what a company or person in the private sector may do (but the law is changing in this area). For example, states may not impose censorship on the media or limit free speech in a way that offends the First Amendment, but your boss (in the private sector) may order you not to talk to the media. - In some cases, a private company may be regarded as participating in "state action." For example, a private defense contractor that gets 90 percent of its business from the federal government has been held to be public for purposes of enforcing the constitutional right to free speech (the company had a rule barring its employees from speaking out in public against its corporate position). It has even been argued that public regulation of private activity is sufficient to convert the private into public activity, thus subjecting it to the requirements of due process. But the Supreme Court rejected this extreme view in 1974 when it refused to require private power companies, regulated by the state, to give customers a hearing before cutting off electricity for failure to pay the bill. Jackson v. Metropolitan Edison Co., 419 US 345 (1974). - States have rights, too. While "states rights" was a battle cry of Southern states before the Civil War, the question of what balance to strike between state sovereignty and federal union has never been simple. In Kimel v. Florida, 528 U.S. 62 (2000), the Supreme Court found in the words of the Eleventh Amendment a basis for declaring that states may not have to obey certain federal statutes.

2. What are some important differences between civil and criminal law?

1) Criminal Law - A criminal case involves a governmental decision—whether state or federal—to prosecute someone (named as a defendant) for violating society's laws. - The law establishes a moral minimum and does so especially in the area of criminal law; if you break a criminal law, you can lose your freedom (in jail) or your life (if you are convicted of a capital offense). * Parties - PROSECUTOR brings case; defendant may remain SILENT * Proof - Beyond a reasonable doubt * Reason - a) To maintain order in society b) To punish the most blameworthy c) To deter serious wrongdoing * Remedies - Fines, jail, and forfeitures. Sometimes DEATH 2) Civil Law - In a civil action, you would not be sent to prison; in the worst case, you can lose property (usually money or other assets). * Parties - PLAINTIFF brings case; defendant must ANSWER or lose by default * Proof - Preponderance of evidence * Reason - To settle disputes peacefully, usually between private parties * Remedies - a) Money damages (legal remedy) b) Injunctions (equitable remedy) c) Specific performance (equitable remedy) --> Regarding plaintiffs and prosecutors, you can often tell a civil case from a criminal case by looking at the caption of a case going to trial. If the government appears first in the caption of the case (e.g., U.S. v. Lieberman) it is likely that the United States is prosecuting on behalf of the people. - The same is true of cases prosecuted by state district attorneys (e.g., State v. Seidel). But this is not a foolproof formula. - Governments will also bring civil actions to collect debts from or settle disputes with individuals, corporations, or other governments. Thus U.S. v. Mayer might be a collection action for unpaid taxes, or U.S. v. Canada might be a boundary dispute in the International Court of Justice. Governments can be sued, as well; people occasionally sue their state or federal government, but they can only get a trial if the government waives its sovereign immunity and allows such suits. Warner v. U.S., for example, could be a claim for a tax refund wrongfully withheld or for damage caused to the Warner residence by a sonic boom from a US Air Force jet flying overhead.

Statutes and Treaties in Congress

1) Statutes - Each Congressional legislative body has committees for various purposes. - In these committees, proposed bills are discussed, hearings are sometimes held, and bills are either reported out (brought to the floor for a vote) or killed in committee. If a bill is reported out, it may be passed by majority vote. - Because of the procedural differences between the House and the Senate, bills that have the same language when proposed in both houses are apt to be different after approval by each body. - A conference committee will then be held to try to match the two versions. If the two versions differ widely enough, reconciliation of the two differing versions into one acceptable to both chambers (House and Senate) is more difficult. - If the House and Senate can agree on identical language, the reconciled bill will be sent to the president for signature or veto. The Constitution prescribes that the president will have veto power over any legislation. * But the two bodies can override a presidential veto with a two-thirds vote in each chamber - Statutes are passed by legislatures and provide general rules for society. States have legislatures (sometimes called assemblies), which are usually made up of both a senate and a house of representatives. Like the federal government, state legislatures will agree on the provisions of a bill, which is then sent to the governor (acting like the president for that state) for signature. Like the president, governors often have a veto power. - The process of creating and amending, or changing, laws is filled with political negotiation and compromise. - Maryland's state legislature is known as the Maryland General Assembly and can be found online at Maryland General Assembly. On a more local level, counties and municipal corporations or townships may be authorized under a state's constitution to create or adopt ordinances. Examples of ordinances include local building codes, zoning laws, and misdemeanors or infractions such as skateboarding or jaywalking. Most of the more unusual laws that are in the news from time to time are local ordinances. For example, in Logan County, Colorado, it is illegal to kiss a sleeping woman; in Indianapolis, Indiana, and Eureka, Nebraska, it is a crime to kiss if you have a mustache. A Kentucky law proclaims that every person in the state must take a bath at least once a year, and failure to do so is illegal. - In Baltimore County, Maryland, the County Council enacts local ordinances and legislation. Once passed and signed into law by the County Executive, they can be found at Baltimore County Code. 2) Treaties - In the case of treaties, the Constitution specifies that only the Senate must ratify them. - When the Senate ratifies a treaty, it becomes part of federal law, with the same weight and effect as a statute passed by the entire Congress. - The statutes of Congress are collected in codified form in the US Code. *The code is available online at http://uscode.house.gov.

Priority of Laws

1. The Constitution (Preemptive Force in US Law) - The US Constitution takes precedence over all statutes and judicial decisions that are inconsistent. For example, if Michigan were to decide legislatively that students cannot speak ill of professors in statesponsored universities, that law would be void, since it is inconsistent with the state's obligation under the First Amendment to protect free speech. Or if the Michigan courts were to allow a professor to bring a lawsuit against a student who had said something about him that was derogatory but not defamatory, the state's judicial system would not be acting according to the First Amendment. This is the concept of preemption. Preemption applies not just to the U.S. Constitution but in instances where state laws conflict with federal law. If the Congress intended the federal law to be supreme, federal law would preempt state law. 2. Statutes and Cases - Statutes generally have priority, or take precedence, over case law (judicial decisions). Under common-law judicial decisions, employers could hire young children for difficult work, offer any wage they wanted, and not pay overtime work at a higher rate. But the federal Fair Labor Standards Act (1938) forbid the use of oppressive child labor and established a minimum pay wage and overtime pay rules. 3.Treaties as Statutes (The "Last in Time" Rule) - A treaty or convention is considered of equal standing to a statute. Thus when Congress ratified the North American Free Trade Agreement (NAFTA), any judicial decisions or previous statutes that were inconsistent—such as quotas or limitations on imports from Mexico that were opposite to NAFTA commitments—would no longer be valid. Similarly, US treaty obligations under the General Agreement on Tariffs and Trade (GATT) and obligations made later through the World Trade Organization (WTO) would override previous federal or state statutes. - One example of treaty obligations overriding, or taking priority over, federal statutes was the tuna-dolphin dispute between the United States and Mexico. The Marine Mammal Protection Act amendments in 1988 spelled out certain protections for dolphins in the Eastern Tropical Pacific, and the United States began refusing to allow the importation of tuna that were caught using "dolphin-unfriendly" methods. This was challenged at a GATT dispute panel in Switzerland, and the United States lost. The discussion continued at the WTO under its dispute resolution process. In short, US environmental statutes can be ruled contrary to US treaty obligations. Under most treaties, the United States can withdraw, or take back, any voluntary limitation on its sovereignty; participation in treaties is entirely elective. That is, the United States may "unbind" itself whenever it chooses. President Trump did this in 2017 when he pulled the US out of the Paris Climate Accord. For practical purposes, some limitations on sovereignty may be good for the nation. The argument goes something like this: if free trade in general helps the United States, then it makes some sense to be part of a system that promotes free trade; and despite some temporary setbacks, the WTO decision process will (it is hoped) provide far more benefits than losses in the long run. This argument invokes utilitarian theory (that the best policy does the greatest good overall for society).

New Deal program

During the global depression of the 1930s, the US economy saw jobless rates of a third of all workers, and President Roosevelt's New Deal program required more active federal legislation. Included in the New Deal program was the recognition of a "right" to form labor unions without undue interference from employers. Congress created the National Labor Relations Board (NLRB) in 1935 to investigate and to enjoin employer practices that violated this right. (In NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), a union dispute with management at a large steel-producing facility near Pittsburgh, Pennsylvania, became a court case. In this case, the NLRB charged Jones & Laughlin Steel Corporation with discriminating against employees who were union members. The company's position was that the law authorizing the NLRB was unconstitutional, exceeding Congress's powers. The court held that the act was narrowly constructed so as to regulate industrial activities that had the potential to restrict interstate commerce. The earlier decisions under the commerce clause holding that labor relations had only an indirect effect on commerce were effectively reversed. Since the ability of employees to engage in collective bargaining (one activity protected by the act) is "an essential condition of industrial peace," the national government was justified in penalizing corporations engaging in interstate commerce that "refuse to confer and negotiate" with their workers. This was, however, a close decision, and the switch of one justice made this ruling possible. Without this switch, the New Deal agenda would have been effectively derailed.

What freedoms does the First Amendment guarantee?

Freedom of: (1) Speech In part, the First Amendment states that "Congress shall make no law...abridging the freedom of speech, or of the press." The Founding Fathers believed that democracy would work best if people (and the press) could talk or write freely, without governmental interference. But the First Amendment was also not intended to be as absolute as it sounded. Oliver Wendell Holmes's famous dictum that the law does not permit you to shout "Fire!" in a crowded theater has seldom been answered, "But why not?" And no one in 1789 thought that defamation laws (torts for slander and libel) had been made unconstitutional. Moreover, because the apparent purpose of the First Amendment was to make sure that the nation had a continuing, vigorous debate over matters political, political speech has been given the highest level of protection over such other forms of speech as (1) "commercial speech," (2) speech that can and should be limited by reasonable "time, place, and manner" restrictions, or (3) obscene speech. - Because of its higher level of protection, political speech can be false, malicious, mean-spirited, or even a pack of lies. A public official in the United States must be prepared to withstand all kinds of false accusations and cannot succeed in an action for defamation unless the defendant has acted with "malice" and "reckless disregard" of the truth. Public figures, such as CEOs of the largest US banks, must also be prepared to withstand accusations that are false. In any defamation action, truth is a defense, but a defamation action brought by a public figure or public official must prove that the defendant not only has his facts wrong but also lies to the public in a malicious way with reckless disregard of the truth. Celebrities such as Lindsay Lohan and Jon Stewart have the same burden to go forward with a defamation action. It is for this reason that the National Enquirer writes exclusively about public figures, public officials, and celebrities; it is possible to say many things that aren't completely true and still have the protection of the First Amendment. Political speech is so highly protected that the Court recognized the right of people to support political candidates through campaign contributions and thus promote the particular viewpoints and speech of those candidates. Fearing the influence of money on politics, Congress has from time to time placed limitations on corporate contributions to political campaigns. But the Supreme Court has had mixed reactions over time. Initially, the court recognized the First Amendment right of a corporation to donate money, subject to certain limits in the case of Buckley v. Valeo, 424 US 1 (1976). (2) Religion - This is accomplished through two specific clauses: a) Establishment Clause - The Establishment Clause prohibits the government from "establishing" a religion. The precise definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England. Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). - Under the "Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state. b) Free Exercise Clause. - The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of "public morals" or a "compelling" governmental interest. - For instance, in Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety. ** Sometimes the Establishment Clause and the Free Exercise Clause come into conflict. The federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.

Congress

In Washington, DC, the federal legislature is known as Congress and has both a House of Representatives and a Senate. a) House of Representatives - The House is composed of representatives elected every two years from various districts in each state. - These districts are established by Congress according to population as determined every ten years by the census, a process required by the Constitution. - Each state has at least one district; the most populous state (California) has fifty-two districts. - it is directly proportioned by population, though no state can have less than one representative. b) Senate - In the Senate, there are two senators from each state, regardless of the state's population. Thus Delaware has two senators and California has two senators, even though California has far more people. Effectively, less than 20 percent of the nation's population can send fifty senators to Washington. ______ (c) Administrative Agencies - Congress has found it necessary and useful to create government agencies to administer various laws. - The Constitution does not expressly provide for administrative agencies, but the US Supreme Court upheld the delegation of power to create federal agencies. * Examples of administrative agencies would include the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the Federal Trade Commission (FTC). - It is important to note that Congress does not have unlimited authority to delegate its lawmaking powers to an agency. It must delegate its authority with some guidelines for the agency and cannot altogether avoid its constitutional responsibilities. - Agencies propose rules in the Federal Register, published each working day of the year. Rules that are formally adopted are published in the Code of Federal Regulations, or CFR, available online at http://www.access.gpo.gov/nara/cfr/cfr-table-search.html.

5. Where in the constitution can the due process clause be found? What is the importance of this clause?

In the fifth Amendment.

What Is Law?

Law is "any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience."

Constitutions

a) Federal - Constitutions are the foundation for a state or nation's other laws, providing the country's legislative, executive, and judicial framework. - Among the nations of the world, the United States has the oldest constitution still in use. It is difficult to amend, which is why there have only been seventeen amendments following the first ten in 1789; * two-thirds of the House and Senate must pass amendments, and threefourths of the states must approve them. b) state - The nation's states also have constitutions. Along with providing for legislative, executive, and judicial functions, state constitutions prescribe various rights of citizens. These rights may be different from, and in addition to, rights granted by the US Constitution. - Like statutes and judicial decisions, a constitution's specific provisions can provide people with a "cause of action" on which to base a lawsuit.

undue burden

n undue burden is an obstacle that is intentionally and unfairly put in the way of a party that is seeking to exercise a constitutional right