Introduction to the Legal System

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Introduction to the Legal System

Overview

Background of Government and Court Structures

Sources of Law in the United States

Other Legal Systems

Types of Courts

Jurisdiction and Venue

Legal Hierarchy and Authorities

Rules for Justiciability

Overview

This chapter begins with an explanation of the legal system and sources of law in the United States. This information is essential to any understanding of the laws that impact the practices of advertising, broadcasting, journalism, and public relations. It also helps the reader interpret and apply the laws described later.

We begin with a brief comparison of governmental systems and a description of sources of law. We then describe legal systems and the types of courts that function both at the federal level and in the individual states. Included in the description of the courts are an introduction to the ideas of jurisdiction and legal authority. We con clude by describing the different types of opinions rendered by the U.S. Supreme Court and the rules of justiciability the court uses to avoid making unnecessary decisions and to avoid interfering with the states and other branches of the U.S. government.

Background of Government and Court Structures

Most countries today operate under a unitary system of government. These include France, Great Britain, Israel, Egypt, and Sweden. By contrast, a few countries operate or have operated using a confederal system. The United States, as it existed for a short period under the Articles of Confederation, and the southern states under the American Confed eracy during the Civil War are historic examples. Switzerland operates under a confeder ation of sovereign “cantons,” and a number of former republics of the Soviet Union have formed a confederal government system called the Commonwealth of Independent States.² For more than 200 years, the United States has had a federal government.

It is also important to understand the concepts of power and authority in connection with systems of governance and sovereignty. Power is the ability to cause others to modify their behavior and to conform to whatever the power holder wants. Authority is given to a leader or institution by the holders of power. Authority allows a leader or institution to compel obedience because of the legitimate position given by the power holders. In the United States, for example, the ultimate power rests with the people. The people can elect or reject all government officials and they have the power to change the form and nature of their government and its Constitutions.³ However, the government and its officials are given the legitimate authority to compel obedience to our laws.

Sovereignty is the source of power in government. Based on the U.S. Constitution, there are three sovereigns in the U.S. governmental system. These are the national government, commonly called the federal government; the states; and the often overlooked but absolute source of power in a democratic republic, the people. The people have the ultimate power to elect representatives to govern themselves and to change the form and nature of their government and its Constitution.⁴

In the U.S. Revolution, the people of the original 13 colonies took the sovereign power from the British King. Initially, they chose to collectively invest their former colonial governments with this sovereignty in units called “States” and band together under Articles of Confederation. They had effectively moved from a unitary to a confederal government. To further consolidate power and to defend the new country from foreign encroachment, the people, through their state representatives, finally formed the federal democratic republic that is today known as the United States.

The United States is federal in the sense that it operates under two tiers of gover nance, both of which are sovereigns, the national central government and the individual states. It is democratic in the sense that its leaders are granted authority to act through election by its citizens, and it is a republic in the sense that the people elect representa tives who are granted authority to engage in constitutionally specified activities of governance on behalf of their constituents, collectively known as the people.

Under the U.S. Constitution, the people, as sovereigns, gave the central government authority for six specific purposes.

The People, through the Constitution, then separated the components of sovereign power into three branches of government. Article I of the U.S. Constitution created a leg islative branch. “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”⁶ Article II created an executive branch. “[T]he executive power shall be vested in a President of the United States of America.”⁷ Finally, Article III created a judiciary. “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”⁸

What is often called the “Supremacy Clause” of the Constitution sets out the hier archy of laws. It says:

Article VI also binds the legislative, executive, and judicial officers of both the national and state governments to support the U.S. Constitution.

Our legal system exists within the federal democratic republic established by the U.S. Constitution.

Legal Systems

There are basically two types of legal systems in the world today: code law and common law.

The foundation of code law is in statements of religious dogma or in the compila tions of written laws, edicts, or decrees from rulers or strong religious leaders. Examples of code law systems include (a) the code of Hammurabi, which is named for the king of Babylonia about 2,000 вc; (b) the Justinian Code, which is the body of Roman law sys tematized during the reign of the Byzantine Emperor, Justinian I, who reigned from 527 to 565; and (c) the Napoleonic Code, which was the collection of French laws compiled during the reign of Emperor Napoleon Bonaparte from 1804 to 1815. Other types of code laws are those statements of religious laws and principles of living found in the Muslim Quran or in the Christian Bible.

Common law is a more recent legal phenomenon than code law. Common law refers to the system of jurisprudence developed in England from the time of William the Conqueror, approximately 1066, to the present. British common law is based on evolu tion over time of legal rules, customs, and maxims created by the judiciary. It evolves and changes over time as courts wrestle with and apply the concepts of precedent and stare decisis. Once the jurisdiction of the British Courts of Law was established by the Magna Carta in 1215, those involved in deciding cases came to the conclusion that cases with similar facts and issues should all have similar results. Courts began consulting older decisions to ensure their decisions followed the principles used before. This consultation of older cases is called “following precedent.”

Following precedent means relying on previously decided cases to determine the choice and application of laws for current cases. The concept of stare decisis, literally to “let the decision stand,” is the very foundation of following precedent. Under the prin ciple of stare decisis, judges look for an historic case with facts and issues similar to the one now being adjudicated. The court does not change the laws but applies the holdings from the previously decided cases to the case currently before the court. Although courts can develop new interpretations and applications of the common law to adapt to current situations, real changes in the law are rare. Therefore, the common law is quite stable and sometimes even antiquated.

This text focuses on the common law principles applicable in the United States. But, the distinctions between code and common law remain important today because the global market for mass communications puts practitioners in both code and com-mon law jurisdictions. If one works in any international market, one simply cannot assume activities that are lawful in one’s own jurisdiction will be permitted in another. In general, countries that have historically been British colonies have adopted a common law system. Those countries that have histories of strong theo cratic governance or intensely centralized governance generally subscribe to code laws. France and a majority of middle-Eastern countries have legal systems based on code laws, while the former and current members of the British Commonwealth, including the United States, use common law as the basis for their legal systems. Even within the United States there is some variation. Louisiana, for example, has a tradition of code law and deference to the Napoleonic Code that influences how some legal decisions are made.¹¹

Sources of Law in the United States

Now that we have presented a brief description of our government and legal system we can move to more specific information on law in the United States. At the most basic level, there are four sources of law in the United States: (a) the Constitutions of the United States and of the 50 states, (b) the Statutes of the United States and of the 50 states, (c) treaties made under the authority of the United States, and (d) case law. The distinction between these four sources of law has practical implications for mass communications practitioners. Modification of the U.S. Constitution requires an amendment to be supported by two thirds of both houses of Congress and ratified by three fourths of the states. Therefore, laws based on Constitutional provisions are very stable and difficult to change. Case law, on the other hand, may change relatively easily and quickly.

We should note here that equity, regulations, and ordinances are not sources of law. We address all three of these concepts later, but for now we simply point out that regu lations, rules, and ordinances are directives issued by executive agencies or subordinate units of government. They are not laws or sources of law but, in fact, must be permitted or “enabled” by laws. Equity is not a source of law; it is merely a system of remedies. Because rules and regulations are not laws, they may be changed very quickly and prac titioners in areas that are heavily regulated must be constantly alert for changes that affect them.

Case law is the most complex source of law and the source that is most pervasive in mass communications. Therefore, we focus our discussion on its three basic components: statutory interpretations, judicial review, and common law.

Statutory Interpretation

Although our elected legislators have been granted the power to enact laws, rather often the statutes they pass are so general or so ambiguous they must be interpreted before they can be applied to real human situations. The onerous task of interpreting statutes has traditionally been left to the courts. If a state legislature, for example, passes and a governor signs into law a statute saying, “[w]hen two trains shall approach each other on the same track, both shall stop and neither shall proceed until the other has passed by,” what does that mean? Answering this and the thousands of other questions about the meaning of laws is called statutory interpretation. Decisions regarding the meaning, choice, and applications of our often conflicting or unintelligible laws are presented to the courts by the people being affected.

Judicial review is an action by a court to evaluate whether a statute is consistent with the constitution. The authority for judicial review is implicitly granted by the U.S. Constitution Articles III and VI. The U.S. Supreme Court first enunciated the doctrine of judicial review in 1803.¹² Since that decision, the U.S. Supreme Court has been the arbiter of the constitutionality of governmental actions at both the national and state level. It has become the practice of state supreme courts to decide their own state constitutional issues. If a litigant raises a question regarding the compliance of state action with the U.S. Constitution, then the matter may be heard within the federal court system, possibly by the U.S. Supreme Court.

Common Law

In addition to interpreting statutes and determining the constitutionality of laws, the federal and state courts also develop common law. Common law is based on the system of precedent or stare decisis, a system of using earlier court rulings to provide guidance for current decisions. For a long period in history, most courts looked to English common law as a source because the state legislatures had not yet enacted public laws or statutes in many areas. Thus, continuity between the British Common Law of the 1700s and 1800s and much of the civil law in the United States is particularly apparent in very tra ditional legal fields like real estate, torts, contracts, commercial paper, and sales of goods. However, over the years, many legal scholars and state legislatures came to the conclu sion that the common law needed to be updated and made more relevant and applicable to the U.S. experience. In many cases, both statutes in the United States and the court decisions that are the foundation for common law have altered and superceded the older common laws.

Other Legal Systems

Although equity, rules, regulations, and ordinances are not law, they do impact enforcement of law and have the authority of government. Therefore, it is important for any mass communications practitioner to understand them.

Equity

Equitable rights and remedies were developed independently from common law. Civil courts of law are limited to awarding money damages, but Courts of Chancery have the authority to grant other remedies to dispense justice. In the United States today, all courts of general jurisdiction are permitted to grant equitable remedies when the appropriate types of cases present themselves. Examples of equitable relief include temporary restraining orders; temporary and permanent injunctions; writs of mandamus; writs of habeas corpus; orders of protection, peace bonds, and specific performance.¹³ These remedies are summarized in Exhibit 1.1.