Introduction to the Legal System
Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
—Chief Justice John Marshall1
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.
Laws are the principles that structure the relationships between government and the gov erned and among the people within a society. To understand law, one must first have a feel for the government itself. Therefore, we begin with a cursory explanation of the structure of government so you will have a foundation for a later explanation of our legal system.
Systems of Government
There are three types of governments: the unitary, the confederal, and the federal. The differences among the three are based on how power is distributed and on the placement of sovereignty.
Under a unitary government, power rests in a centralized source, which is supe rior to all citizens and subunits of government. The sovereign, whether it is a single person or a body of rulers, has power over all matters in the society from education to garbage collection.
A confederal government, sometimes called a confederacy, is a fairly loose asso ciation of sovereign states or units that have joined together for specific purposes. Power in a confederacy flows from the sovereign units to a centralized unit that has very lim ited authority.
A federal government is theoretically a combination of the unitary and confederal systems. Ostensibly, power in a federal system flows both from many sovereign states to a centralized government and from the centralized government to the states. Certain pow ers are given to the central government by the member states through their subscription to a written constitution. The constitution not only gives sovereign powers to the central ized government, it also binds the member states together. The compact requires sub scribing members to accept the delegated authority of the central government.
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.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.5
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:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land: and the judges in every state shall be bound thereby, anything in the Constitution of laws of any state to the contrary not withstanding.9
The Senators and Representative before mentioned, and the Members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by Oath or Affirmation to support this Constitution.10
Our legal system exists within the federal democratic republic established by the U.S. Constitution.
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.
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.
There are national statutes, more commonly called federal statutes, and state statutes. Statutes are the laws enacted by legislatures and endorsed by the appropriate chief executive. To be valid, all statutes, whether federal or state, must be constitutional. In other words, they must be made in accordance with the U.S. Constitution. State statutes must also be consistent with the appropriate state’s constitution.
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.
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 is a system of remedies that was developed in England. It is close to the antithesis of common law because it permits deviations from rigid enforcement and allows significant judicial discretion. Equity, or more specifically equitable remedies, was developed as a response to the often harsh, unfair, or unjust decisions that resulted from strict application of common law. Where the common law courts could not or would not give truly fair relief, there could be an appeal for justice to the King’s Chancellor. The rules and remedies origi nally applied in these situations have been structured and are now applied in what are called Courts of Chancery. The courts that hear cases in equity are called Courts of Chancery because these actions were originally heard by the King’s Chancellor.
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.
Temporary restraining order (TRO)
Emergency order of the court, obtained with out the defendant being present, which imposes some requirement or restriction on the actions of the defendant. The requirement has only a short duration.
Order of the court restricting the behavior of either party. Usually used to maintain the sta tus quo during the pendency of a court action at law.
Order of the court without specified time limit restricting the actions of one party at the request of another party.
Order of a court ordering a public official (or judge of a lower court) to take a specific action that is part of their public office or duties.
“Have you the body.” A court order to a jailer commanding him or her to bring an inmate before the court and prove the inmate is not held unjustly.
Order of protection
Very similar to a temporary restraining order. It is a court order developed specifically as a remedy for domestic violence.
Remedy developed to prevent future illegal acts. It may require payment of surety to guarantee future good conduct. Violations may also be punished as contempt of court.
A court order directing a party to perform a contractual obligation where money damages do not provide an adequate remedy.
Rules, Regulations, Codes, and Ordinances
In addition to the four sources of law previously discussed, there are several special large bodies or categories of authoritative rules, regulations, codes, and ordinances that often have the force and effect of law. Because of how these rules, regulations, and ordinances originate, they do not rise to the level of law.
Rules and Regulations
When the U.S. Congress or the state legislatures pass laws, they generally designate, within the statutes themselves, a specific executive agency that will be responsible for implementing the law. The specified agency is responsible for creating and enforcing rules and regulations that give impetus to public policy enunciated in the statute.
Public laws, also called statutes, can only be passed by elected representatives of the people. Rules and regulations are created by executive agencies and may have the force and effect of law, but are not law. The constitutions of the United States and of the individual states give the power to create laws only to the democratically elected repre sentatives of the people. Therefore, only legislators can create law. Executive agencies, appointed by either the president or a state’s governor, only have the authority given to them by legislative bodies in statutes. The promulgation, content, purview, and enforce ment of rules and regulations are often called “administrative law,” although the term law used in this context is a misnomer.
As discussed previously, the U.S. Constitution created a federal system of gover nance. Under this system, the states as original sovereigns possess power over all matters within their borders as long as those powers are not granted to the national government by the Constitution.14 Therefore, each state has a unitary government with a single sovereign and only one source of power. All units of local government are subordinate to the state. Counties, cities, municipalities, wards, parishes, and special districts have no independent authority, power, or existence other than what is specifically granted to them by the state constitution or state law. The type of county government and whether a local government has “home rule,” as well as the exact scope of local government is determined by the state constitutions and by the legislatures of the various states. Therefore, directives of local government desig nated as ordinances or codes are similar to the administrative rules and regulations discussed previously. They do not have an autonomous existence of their own and they are not laws.
Types of Courts
In the United States there are two basically independent court systems: the national court system, usually referred to as the federal courts; and the individual state courts. Thus, at any one time there are 51 separate and distinct court systems operating within the United States. Each of these court systems has its own separate power basis or constitution, which describes its structure and authority.
The U.S. Constitution provides for two types of courts in the national court system: the Article III courts, also known as “constitutional courts” and the Article I courts, also known as “legislative courts.” The Constitution creates Article III courts with the fol lowing language:
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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.15
Article I courts are created in Article I, Section 8, which says: “The Congress shall have Power. . . . To constitute Tribunals inferior to the supreme Court.”16
Federal judges are appointed by the president with the advice and consent of the Senate.17 Judges appointed under Article III hold their offices for life, during good behavior, and their compensation may not be reduced during their time in office. However, judges in Article I courts do not have similar protection. Therefore, magistrates appointed to serve in legislative courts serve terms with set limits and could conceivably have their compensation reduced or terminated at the whim of Congress.
Article III Courts