Review the "IRAC Method" section of Ch. 1 of Legal Environment of Business.
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chapter1.docxCHAPTER 1 Legal Heritage and the Digital Age
Statue of Liberty, New York Harbor
The Statue of Liberty stands majestically in New York Harbor. During the American Revolution, France gave the colonial patriots substantial support in the form of money for equipment and supplies, officers and soldiers who fought in the war, and ships and sailors who fought on the seas. Without the assistance of France, it is unlikely that the American colonists would have won their independence from Britain. In 1886, the people of France gave the Statue of Liberty to the people of the United States in recognition of friendship that was established during the American Revolution. Since then, the Statue of Liberty has become a symbol of liberty and democracy throughout the world.
Learning Objectives
After studying this chapter, you should be able to:
1. Define law.
2. Describe the functions of law.
3. Explain the development of the U.S. legal system.
4. List and describe the sources of law in the United States.
5. Discuss the importance of the U.S. Supreme Court’s decision in Brown v. Board of Education.
Chapter Outline
1. Introduction to Legal Heritage and the Digital Age
2. What Is Law?
1. Landmark U.S. Supreme Court Case • Brown v. Board of Education
3. Schools of Jurisprudential Thought
1. CASE 1.1 • U.S. Supreme Court Case • POM Wonderful LLC v. Coca-Cola Company
2. Global Law • Command School of Jurisprudence of Cuba
1. Landmark Law • Adoption of English Common Law in the United States
2. Global Law • Civil Law System of France and Germany
5. Sources of Law in the United States
1. Contemporary Environment • How a Bill Becomes Law
2. Digital Law • Law of the Digital Age
1. CASE 1.2 • U.S. Supreme Court Case • Shelby County, Texas v. Holder
“ Where there is no law, there is no freedom.”
—John Locke Second Treatise of Government, Sec. 57
Introduction to Legal Heritage and the Digital Age
In the words of Judge Learned Hand, “Without law we cannot live; only with it can we insure the future which by right is ours. The best of men’s hopes are enmeshed in its success.” 1 Every society makes and enforces laws that govern the conduct of the individuals, businesses, and other organizations that function within it.
Although the law of the United States is based primarily on English common law, other legal systems, such as Spanish and French civil law, also influence it. The sources of law in this country are the U.S. Constitution, state constitutions, federal and state statutes, ordinances, administrative agency rules and regulations, executive orders, and judicial decisions by federal and state courts.
Human beings do not ever make laws; it is the accidents and catastrophes of all kinds happening in every conceivable way that make law for us.
Plato
Laws IV, 709
Businesses that are organized in the United States are subject to its laws. They are also subject to the laws of other countries in which they operate. Businesses organized in other countries must obey the laws of the United States when doing business here. In addition, businesspeople owe a duty to act ethically in the conduct of their affairs, and businesses owe a responsibility not to harm society.
This chapter discusses the nature and definition of law, theories about the development of law, and the history and sources of law in the United St
What Is Law?
The law consists of rules that regulate the conduct of individuals, businesses, and other organizations in society. It is intended to protect persons and their property against unwanted interference from others. In other words, the law forbids persons from engaging in certain undesirable activities. Consider the following passage:
A lawyer without history or literature is a mechanic, a mere working mason: if he possesses some knowledge of these, he may venture to call himself an architect.
Sir Walter Scott
Guy Mannering, Ch. 37 (1815)
Hardly anyone living in a civilized society has not at some time been told to do something or to refrain from doing something, because there is a law requiring it, or because it is against the law. What do we mean when we say such things?
At the end of the 18th century, Immanuel Kant wrote of the question “What is law?” that it “may be said to be about as embarrassing to the jurist as the well-known question ‘What is truth?’ is to the logician.” 2
Definition of
The concept of law is broad. Although it is difficult to state a precise definition, Black’s Law Dictionary gives one that is sufficient for this text:
law
That which must be obeyed and followed by citizens, subject to sanctions or legal consequences; a body of rules of action or conduct prescribed by controlling authority and having binding legal force.
Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law. 3
Functions of the Law
The law is often described by the function it serves in a society. The primary functions served by the law in this country are the following:
Commercial law lies within a narrow compass, and is far purer and freer from defects than any other part of the system.
Henry Peter Brougham
House of Commons, February 7, 1828
1. Keeping the peace
Example
Some laws make certain activities crimes.
2. Shaping moral standards
Example
Some laws discourage drug and alcohol abuse.
3. Promoting social justice
Example
Some laws prohibit discrimination in employment.
4. Maintaining the status quo
Example
Some laws prevent the forceful overthrow of the government.
5. Facilitating orderly change
Example
Laws are enacted only after considerable study, debate, and public input.
6. Facilitating planning
Example
Well-designed commercial laws allow businesses to plan their activities, allocate their productive resources, and assess the risks they take.
7. Providing a basis for compromise
Example
Laws allow for the settlement of cases prior to trial. Approximately 95 percent of all lawsuits are settled in this manner.
8. Maximizing individual freedom
Example
The rights of freedom of speech, religion, and association are granted by the First Amendment to the U.S. Constitution.
CONCEPT SUMMARY Functions of the Law
|
1. Keep the peace |
1. 5. Facilitate orderly change |
|
1. 2. Shape moral standards |
1. 6. Facilitate planning |
|
1. 3. Promote social justice |
1. 7. Provide a basis for compromise |
|
1. 4. Maintain the status quo |
1. 8. Maximize individual freedom |
Fairness of the Law
On the whole, the U.S. legal system is one of the most comprehensive, fair, and democratic systems of law ever developed and enforced. Nevertheless, some misuses and oversights of our legal system—including abuses of discretion and mistakes by judges and juries, unequal applications of the law, and procedural mishaps—allow some guilty parties to go unpunished.
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.
Anatole France
Example
In Standefer v. United States, 4 Chief Justice Warren Burger of the U.S. Supreme Court stated, “This case does no more than manifest the simple, if discomforting, reality that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.”
Flexibility of the Law
U.S. law evolves and changes along with the norms of society, technology, and the growth and expansion of commerce in the United States and the world. The following quote by Judge Jerome Frank discusses the value of the adaptability of law:
Law must be stable and yet it cannot stand still.
Roscoe Pound
Interpretations of Legal History (1923)
The law always has been, is now, and will ever continue to be, largely vague and variable. And how could this be otherwise? The law deals with human relations in their most complicated aspects. The whole confused, shifting helter-skelter of life parades before it—more confused than ever, in our kaleidoscopic age.
Critical Legal Thinking
1. Are there any benefits for the law being “vague and variable”? Are bright-line tests possible for the law? Explain the statement, “Much of the uncertainty of law is not an unfortunate accident; it is of immense social value.”
The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions; although changes cannot be made lightly, yet rules of law must be more or less impermanent, experimental and therefore not nicely calculable.
Much of the uncertainty of law is not an unfortunate accident; it is of immense social value. 5
A landmark U.S. Supreme Court case—Brown v. Board of Education—is discussed in the following feature. This case shows the flexibility of the law because the U.S. Supreme Court overturned a past decision of the U.S. Supreme Court.
LANDMARK U.S. SUPREME COURT CASE Equal Protection Brown v. Board of Education
“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.”
—Warren, Justice
Slavery was abolished by the Thirteenth Amendment to the Constitution in 1865. The Fourteenth Amendment, added to the Constitution in 1868, contains the Equal Protection Clause, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The original intent of this amendment was to guarantee equality to freed African Americans. But equality was denied to African Americans for years. This included discrimination in housing, transportation, education, jobs, service at restaurants, and other activities.
In 1896, the U.S. Supreme Court decided the case Plessy v. Ferguson. 6 In that case, the state of Louisiana had a law that provided for separate but equal accommodations for African American and white railway passengers. The Supreme Court held that the “separate but equal” state law did not violate the Equal Protection Clause of the Fourteenth Amendment. The “separate but equal” doctrine was then applied to all areas of life, including public education. Thus, African American and white children attended separate schools, often with unequal facilities.
It was not until 1954 that the U.S. Supreme Court decided a case that challenged the “separate but equal” doctrine as it applied to public elementary and high schools. In Brown v. Board of Education , a consolidated case that challenged the separate school systems of four states—Kansas, South Carolina, Virginia, and Delaware—the Supreme Court decided to revisit the “separate but equal” doctrine announced by its forbearers in another century. This time, a unanimous Supreme Court, in an opinion written by Chief Justice Earl Warren, reversed prior precedent and held that the separate but equal doctrine violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution. In its opinion, the Court stated,
Today, education is perhaps the most important function of state and local governments. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
After Brown v. Board of Education was decided, it took court orders as well as U.S. army enforcement to integrate many of the public schools in this country. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 1954 U.S. Lexis 2094 (Supreme Court of the United States, 1954).
WEB EXERCISE
To view court documents related to Brown v. Board of Education, go to www.loc.gov/exhibits/brown/brown-brown.html .
Critical Legal Thinking Questions
1. It has been said that the U.S. Constitution is a “living document”—that is, one that can adapt to changing times. Do you think this is a good policy? Or should the U.S. Constitution be interpreted narrowly and literally, as originally written?
Schools of Jurisprudential Thought
The philosophy or science of the law is referred to as jurisprudence . There are several different philosophies about how the law developed, ranging from the classical natural theory to modern theories of law and economics and critical legal studies. Classical legal philosophies are discussed in the following paragraphs.
jurisprudence
The philosophy or science of law.
Natural Law School
The Natural Law School of jurisprudence postulates that the law is based on what is “correct.” Natural law philosophers emphasize a moral theory of law —that is, law should be based on morality and ethics. Natural law is “discovered” by humans through the use of reason and choosing between good and evil.
The law is not a series of calculating machines where definitions and answers come tumbling out when the right levers are pushed.
William O. Douglas
Dissent, A Safeguard of Democracy (1948)
Examples
Documents such as the U.S. Constitution, the Magna Carta, and the United Nations Charter reflect this theory.
The following U.S. Supreme Court case involves the moral theory of law and the issue of ethics.
CASE 1.1 U.S. SUPREME COURT CASE Moral Theory of Law and Ethics POM Wonderful LLC v. Coca-Cola Company
134 S.Ct. 2228, 2014 U.S. Lexis 4165 (2014) Supreme Court of the United States
“Lanham Act suits provide incentives for manufacturers to behave well.”
—Kennedy, Justice
Facts
POM Wonderful, LLC (POM) is a grower of pomegranates, a fruit, and a maker and distributor of pomegranate juice and juice blends. POM produces and sells a pomegranate-blueberry juice blend that consists of 85% pomegranate and 15% blueberry juices.
The Coca-Cola Company’s Minute Maid Division makes a juice blend sold with a label that, in describing the contents, displays the words “pomegranate blueberry” with far more prominence than other words on the label. In truth, Coca-Cola’s pomegranate blueberry juice is made of five different juices, and contains but 0.3% pomegranate, 0.2% blueberry juice, and 0.1% raspberry juice. The Coca-Cola pomegranate blueberry juice is actually made with 99.4% apple and grape juices.
Despite the minuscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words “POMEGRANATE” and “BLUEBERRY” in all capital letters on two separate lines. Below those words, Coca-Cola placed the phrase “flavored blend of 5 juices” in much smaller type. And below that phrase, in still smaller type, were the words “from concentrate with added ingredients”—and, with a line break before the final phrase—“and other natural flavors.” Coca-Cola’s front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple.
POM sued Coca-Cola under Section 43 of the federal Lanham Act, which allows one competitor to sue another to recover damages for unfair competition arising from false and misleading product descriptions. Coca-Cola tried to avoid POM’s lawsuit by asserting that the Federal Food, Drug, and Cosmetic Act (FDCA), a federal statute that protects the safety of food products, did not require any different labeling. The U.S. district court and the U.S. court of appeals held in favor of Coca-Cola. POM appealed to the U.S. Supreme Court.
Issue
Can a private party bring an unfair competition lawsuit under the Lanham Act against a competitor that challenges the truthfulness of a food label?
Language of the U.S. Supreme Court
The Lanham Act creates a cause of action for unfair competition through misleading advertising and labeling. Coca-Cola is incorrect that the best way to harmonize the statutes is to bar POM’s Lanham Act claim. By serving a distinct compensatory function that may motivate injured persons to come forward, Lanham Act suits provide incentives for manufacturers to behave well.
Decision
The U.S. Supreme Court held that the POM may proceed with its Lanham Act unfair competition lawsuit against Coca-Cola and remanded the case for further proceedings.
Ethics Questions
1. Do you think that Coca-Cola was trying to trick consumers into buying cheap apple-grape juice by labeling it pomegranate blueberry juice? Do you think Coca-Cola acted ethically in this case?
Historical School
The Historical School of jurisprudence believes that the law is an aggregate of social traditions and customs that have developed over the centuries. It believes that changes in the norms of society will gradually be reflected in the law. To these legal philosophers, the law is an evolutionary process.
Example
Historical legal scholars look to past legal decisions (precedent) to solve contemporary problems.
Analytical School
The Analytical School of jurisprudence maintains that the law is shaped by logic. Analytical philosophers believe that results are reached by applying principles of logic to the specific facts of a case. The emphasis is on the logic of the result rather than on how the result is reached.
Even when laws have been written down, they ought not always to remain unaltered.
Aristotle
Example
If the U.S. Constitution would have freed the slaves or granted females the right to vote, it would not have been ratified by the states in 1788.
Sociological School
The Sociological School of jurisprudence asserts that the law is a means of achieving and advancing certain sociological goals. The followers of this philosophy, known as realists, believe that the purpose of law is to shape social behavior. Sociological philosophers are unlikely to adhere to past law as precedent.
Examples
Laws that make discrimination in employment illegal and laws that impose penalties for drunk driving reflect this theory.
Command School
The philosophers of the Command School of jurisprudence believe that the law is a set of rules developed, communicated, and enforced by the ruling party rather than a reflection of the society’s morality, history, logic, or sociology. This school maintains that law changes when the ruling class changes.
Example
During certain military conflicts, such as World War II and the Vietnam War, the federal government has enacted draft laws that require men of a certain age to serve in the military if they meet certain physical and other requirements.
Critical Legal Studies School
The Critical Legal Studies School proposes that legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo. Critical legal theorists argue that legal disputes should be solved by applying arbitrary rules that are based on broad notions of what is “fair” in each circumstance. Under this theory, subjective decision making by judges would be permitted.
Example
This school postulates that rape laws often make it difficult for women to prove legally that they have been raped because these laws have mostly been drafted from a male’s perspective. Therefore, says this school, these laws should be ignored and the judge should be free to decide whether rape has occurred in his or her subjective decision making.
Law and Economics School
The Law and Economics School believes that promoting market efficiency should be the central goal of legal decision making. This school is also called the Chicago School, named after the University of Chicago, where it was first developed.
Example
Proponents of the law and economics theory suggest that the federal government’s policy of subsidizing housing—by a law that permits a portion of interest paid on mortgage loans to be deducted from an individual borrower’s federal income taxes and laws that created government-sponsored enterprises (Fannie Mae and Freddie Mac) that purchase low-rate interest mortgages made by banks and other lending institutions—provide incentives so that too many homes are built. If these laws did not exist, then the free market would determine the exact number of homes that should be built.
CONCEPT SUMMARY Schools of Jurisprudential Thought
|
School |
Philosophy |
|
Natural Law |
Postulates that law is based on what is “correct.” It emphasizes a moral theory of law—that is, law should be based on morality and ethics. |
|
Historical |
Believes that law is an aggregate of social traditions and customs. |
|
Analytical |
Maintains that law is shaped by logic. |
|
Sociological |
Asserts that the law is a means of achieving and advancing certain sociological goals. |
|
Command |
Believes that the law is a set of rules developed, communicated, and enforced by the ruling party. |
|
Critical Legal Studies |
Maintains that legal rules are unnecessary and that legal disputes should be solved by applying arbitrary rules based on fairness. |
|
Law and Economics |
Believes that promoting market efficiency should be the central concern of legal decision making. |
The following feature discusses the Command School of jurisprudence of Cuba.
Global Law Command School of Jurisprudence of
Havana, Cuba
Cuba is an island nation located in the Caribbean Sea less than 100 miles south of Key West, Florida. In 1959, Fidel Castro led a revolution that displaced the existing dictatorial government. Castro installed a communist government that expropriated and nationalized much private property. The communist government installed a one-party rule over the country and installed a command economy and system of jurisprudence. More than One million Cubans fled the island to the United States, where many created a thriving community and economy in Miami, Florida. Under a state-controlled planned economy based on socialist principles, the production of goods and food items in Cuba fell substantially, and major shortages of houses, medical supplies, and other goods and services occurred. After more than five decades of a command economy, Cuba is permitting limited free-market measures, but 90 percent of workers are still employed by the government.
History of American Law
When the American colonies were first settled, the English system of law was generally adopted as the system of jurisprudence. This was the foundation from which American judges developed a common law in America.
English Common Law
English common law was law developed by judges who issued their opinions when deciding cases. The principles announced in these cases became precedent for later judges deciding similar cases. The English common law can be divided into cases decided by the law courts, equity courts, and merchant courts.
English common law
Law developed by judges who issue their opinions when deciding a case. The principles announced in these cases became precedent for later judges deciding similar cases.
Law Courts
Prior to the Norman Conquest of England in 1066, each locality in England was subject to local laws, as established by the lord or chieftain in control of a local area. There was no countrywide system of law. After 1066, William the Conqueror and his successors to the throne of England began to replace the various local laws with one uniform system of law. To accomplish this, the king or queen appointed loyal followers as judges in all local areas. These judges were charged with administering the law in a uniform manner, in courts that were called law courts. Law at that time tended to emphasize the form (legal procedure) over the substance (merit) of a case. The only relief available at law courts was a monetary award for damages.
Chancery (Equity) Courts
Because of some unfair results and limited remedies available in the law courts, a second set of courts—the Court of Chancery (or equity court)—was established. These courts were under the authority of the Lord Chancellor. Persons who believed that the decision of a law court was unfair or believed that the law court could not grant an appropriate remedy could seek relief in the Court of Chancery. Rather than emphasize legal procedure, the chancery court inquired into the merits of the case. The chancellor’s remedies were called equitable remedies because they were shaped to fit each situation. Equitable orders and remedies of the Court of Chancery took precedence over the legal decisions and remedies of the law courts.
Two things most people should never see made: sausages and laws.
An old saying
Merchant Courts
As trade developed during the Middle Ages, merchants who traveled about England and Europe developed certain rules to solve their commercial disputes. These rules, known as the “law of merchants,” or the Law Merchant , were based on common trade practices and usage. Eventually, a separate set of courts was established to administer these rules. This court was called the Merchant Court . In the early 1900s, the Merchant Court was absorbed into the regular law court system of England.
The following feature discusses the adoption of English common law in the United States.
Landmark Law Adoption of English Common Law in the United States
All the states—except Louisiana—of the United States of America base their legal systems primarily on the English common law. In the United States, the law, equity, and merchant courts have been merged. Thus, most U.S. courts permit the aggrieved party to seek both legal and equitable orders and remedies.
The importance of common law to the American legal system is described in the following excerpt from Justice Douglas’s opinion in the 1841 case Penny v. Little:
The common law is a beautiful system, containing the wisdom and experiences of ages. Like the people it ruled and protected, it was simple and crude in its infancy and became enlarged, improved, and polished as the nation advanced in civilization, virtue, and intelligence. Adapting itself to the conditions and circumstances of the people and relying upon them for its administration, it necessarily improved as the condition of the people was elevated. The inhabitants of this country always claimed the common law as their birthright, and at an early period established it as the basis of their jurisprudence. 7
Currently, the law of the United States is a combination of law created by the judicial system and by congressional legislation.
The following feature discusses the development of the civil law system in Europe.
Global Law Civil Law System of France and Germany
One of the major legal systems that developed in the world in addition to the Anglo-American common law system is the Romano-Germanic civil law system . This legal system, which is commonly called the civil law , dates to 450 BCE, when Rome adopted the Twelve Tables, a code of laws applicable to the Romans. A compilation of Roman law, called the Corpus Juris Civilis (“Body of Civil Law”), was completed in CE 534. Later, two national codes—the French Civil Code of 1804 (the Napoleonic Code) and the German Civil Code of 1896 —became models for countries that adopted civil codes.
In contrast to the Anglo-American law, in which laws are created by the judicial system as well as by congressional legislation, the civil code and parliamentary statutes are the sole sources of the law in most civil law countries. Thus, the adjudication of a case is simply the application of the code or the statutes to a particular set of facts. In some civil law countries, court decisions do not have the force of law.
Many countries in Europe still follow the civil law system.
Sources of Law in the United States
In the more than 200 years since the founding of the United States and adoption of the English common law, the lawmakers of this country have developed a substantial body of law. The sources of modern law in the United States are discussed in the paragraphs that follow.
Constitutions
The Constitution of the United States of America is the supreme law of the land. This means that any law—whether federal, state, or local—that conflicts with the U.S. Constitution is unconstitutional and therefore unenforceable.
Constitution of the United States of America
The supreme law of the United States.
The principles enumerated in the U.S. Constitution are extremely broad because the founding fathers intended them to be applied to evolving social, technological, and economic conditions. The U.S. Constitution is often referred to as a “living document” because it is so adaptable.
The U.S. Constitution established the structure of the federal government. It created three branches of government and gave them the following powers:
The Constitution of the United States is not a mere lawyers’ document: it is a vehicle of life, and its spirit is always the spirit of age.
Woodrow Wilson
Constitutional Government in the United States (1927)
· The legislative branch (Congress) has the power to make (enact) the law.
· The executive branch (president) has the power to enforce the law.
· The judicial branch (courts) has the power to interpret and determine the validity of the law.
Powers not given to the federal government by the Constitution are reserved for the states. States also have their own constitutions. State constitutions are often patterned after the U.S. Constitution, although many are more detailed. State constitutions establish the legislative, executive, and judicial branches of state government and establish the powers of each branch. Provisions of state constitutions are valid unless they conflict with the U.S. Constitution or any valid federal law.
Treaties
The U.S. Constitution provides that the president, with the advice and consent of two-thirds of the Senate, may enter into treaties with foreign governments. Treaties become part of the supreme law of the land. With increasing international economic relations among nations, treaties will become an even more important source of law that will affect business in the future.
treaty
A compact made between two or more nations.
Federal Statutes
Statutes are written laws that establish certain courses of conduct that covered parties must adhere to. The U.S. Congress is empowered by the Commerce Clause and other provisions of the U.S. Constitution to enact federal statutes to regulate foreign and interstate commerce.
U.S. Congress, Washington DC
The U.S. Congress, which is a bicameral system made up of the U.S. Senate and the U.S. House of Representatives, creates federal law by enacting statutes. Each state has two senators and is allocated a certain number of representatives based on population.
statute
Written law enacted by the legislative branch of the federal and state governments that establishes certain courses of conduct that covered parties must adhere to.
Examples
The federal Clean Water Act regulates the quality of water and restricts water pollution. The federal Securities Act of 1933 regulates the issuance of securities. The federal National Labor Relations Act establishes the right of employees to form and join labor organizations.
Federal statutes are organized by topic into code books . This is often referred to as codified law . Federal statutes can be found in these hardcopy books and online.
The following feature describes how a bill becomes law.
Contemporary Environment How a Bill Becomes Law
The U.S. Congress is composed of two chambers, the U.S. House of Representatives and the U.S. Senate . Thousands of bills are introduced in the U.S. Congress each year, but only a small percentage of them become law. The process of legislation at the federal level is as follows:
1. A member of the U.S. House of Representatives or U.S. Senate introduces a bill in his or her chamber . The bill is assigned a number: “H.R. [number]” for House bills and “S [number]” for Senate bills. The bill is printed in the public Congressional Record. The bill is available in hardcopy and on the Internet. All bills for raising revenue must originate in the U.S. House of Representatives.
2. The bill is referred to the appropriate committee for review and study. The committee can do the following: (1) reject the bill; (2) report it to the full chamber for vote; (3) simply not act on it, in which case the bill is said to have died in committee—many bills meet this fate; or (4) send the bill to a subcommittee for further study. A subcommittee can let the bill die or report it back to the full committee.
3. Bills that receive the vote of a committee are reported to the full chamber, where they are debated and voted on. If the bill receives a majority vote of the chamber, it is sent to the other chamber, where the previously outlined process is followed. Bills originated in one chamber often die in the other chamber. If the second chamber makes no changes in the original bill, the bill is reported for vote by that chamber. If the second chamber makes significant changes to the bill, a conference committee that is made up of members of both chambers try to reconcile the differences. If a compromised version is agreed to by the conference committee, the bill is reported for vote.
4. A bill that is reported to a full chamber must receive the majority vote of the chamber, and if it receives this vote, it is forwarded to the other chamber. If a majority of the second chamber approves the bill, it is then sent to the president’s desk.
5. If the president signs a bill, it becomes law. If the president takes no action for ten days, the bill automatically becomes law. If the president vetoes the bill, the bill can be passed into law if two-thirds of the members of the House and two-thirds of the members of the Senate vote to override the veto and approve the bill. Many bills that are vetoed by the president do not obtain the necessary two-thirds vote to override the veto.
Because of this detailed and political legislative process, few of the many bills that are submitted by members of the U.S. House of Representatives or U.S. Senate become law.
Critical Legal Thinking
1. Why is the process of the U.S. Congress enacting statutes so complex? What checks and balances are built into the system before a bill can become law?
State Statutes
State legislatures enact state statutes . Such statutes are placed in code books. State statutes can be assessed in these hardcopy code books or online.
Examples
The state of Florida has enacted the Lake Okeechobee Protection Act to protect Lake Okeechobee and the northern Everglades ecosystem. The Nevada Corporations Code outlines how to form and operate a Nevada corporation. The Texas Natural Resources Code regulates oil, gas, mining, geothermal, and other natural resources in the state.
Ordinances
State legislatures often delegate lawmaking authority to local government bodies, including cities and municipalities, counties, school districts, and water districts. These governmental units are empowered to adopt ordinances . Ordinances are also codified.
ordinance
Law enacted by local government bodies, such as cities and municipalities, counties, school districts, and water districts.
Examples
The city of Mackinac Island, Michigan, a city of 1800s Victorian houses and buildings, has enacted ordinances that keep the island car free, keep out fast-food chains, and require buildings to adhere to era-specific aesthetic standards. Other examples of city ordinances include zoning laws, building codes, and sign restrictions.
Executive Orders
The executive branch of government, which includes the president of the United States and state governors, is empowered to issue executive orders . This power is derived from express delegation from the legislative branch and is implied from the U.S. Constitution and state constitutions.
executive order
An order issued by a member of the executive branch of the government.
Example
When the United States is at war with another country, the president of the United States usually issues executive orders prohibiting U.S. companies from selling goods or services to that country.
Regulations and Orders of Administrative Agencies
The legislative and executive branches of federal and state governments are empowered to establish administrative agencies to enforce and interpret statutes enacted by Congress and state legislatures. Many of these agencies regulate business.
administrative agencies
Agencies (such as the Securities and Exchange Commission and the Federal Trade Commission) that the legislative and executive branches of federal and state governments are empowered to establish.
Examples
Congress has created the Securities and Exchange Commission (SEC) to enforce federal securities laws and the Federal Trade Commission (FTC) to enforce consumer protection statutes.
Congress or the state legislatures usually empower these agencies to adopt administrative rules and regulations to interpret the statutes that the agency is authorized to enforce. These rules and regulations have the force of law. Administrative agencies usually have the power to hear and decide disputes. Their decisions are called orders . Because of their power, administrative agencies are often informally referred to as the “fourth branch of government.”
Judicial Decisions
When deciding individual lawsuits, federal and state courts issue judicial decisions . In these written opinions, a judge or justice usually explains the legal reasoning used to decide the case. These opinions often include interpretations of statutes, ordinances, and administrative regulations and the announcement of legal principles used to decide the case. Many court decisions are reported in books that are available in law libraries.
judicial decision
A decision about an individual lawsuit issued by a federal or state court.
Doctrine of Stare Decisis
Based on the common law tradition, past court decisions become precedent for deciding future cases. Lower courts must follow the precedent established by higher courts. That is why all federal and state courts in the United States must follow the precedents established by U.S. Supreme Court decisions.
precedent
A rule of law established in a court decision. Lower courts must follow the precedent established by higher courts.
The courts of one jurisdiction are not bound by the precedent established by the courts of another jurisdiction, although they may look to each other for guidance.
Example
State courts of one state are not required to follow the legal precedent established by the courts of another state.
Adherence to precedent is called the doctrine of stare decisis (“to stand by the decision”). The doctrine of stare decisis promotes uniformity of law within a jurisdiction, makes the court system more efficient, and makes the law more predictable for individuals and businesses. A court may later change or reverse its legal reasoning if a new case is presented to it and change is warranted. The doctrine of stare decisis is discussed in the following excerpt from Justice Musmanno’s decision in Flagiello v. Pennsylvania:
stare decisis
Latin for “to stand by the decision.” Adherence to precedent.
Critical Legal Thinking
1. Why was the doctrine of stare decisis developed? What would be the consequences if the doctrine of stare decisis was not followed?
Without stare decisis, there would be no stability in our system of jurisprudence. Stare decisis channels the law. It erects lighthouses and flies the signal of safety. The ships of jurisprudence must follow that well-defined channel which, over the years, has been proved to be secure and worthy. 8
CONCEPT SUMMARY Sources of Law in the United States
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Source of Law |
Description |
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Constitutions |
The U.S. Constitution establishes the federal government and enumerates its powers. Powers not given to the federal government are reserved to the states. State constitutions establish state governments and enumerate their powers. |
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Treaties |
The president, with the advice and consent of two-thirds of the Senate, may enter into treaties with foreign countries. |
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Codified law: statutes and ordinances |
Statutes are enacted by Congress and state legislatures. Ordinances are enacted by municipalities and local government bodies. They establish courses of conduct that covered parties must follow. |
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Executive orders |
Issued by the president and governors of states. Executive orders regulate the conduct of covered parties. |
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Regulations and orders of administrative agencies |
Administrative agencies are created by the legislative and executive branches of government. They may adopt rules and regulations that regulate the conduct of covered parties as well as issue orders. |
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Judicial decisions |
Courts decide controversies. In doing so, a court issues an opinion that states the decision of the court and the rationale used in reaching that decision. |
Where law ends, there tyranny begins.
William Pitt, first Earl of Chatham
Priority of Law in the United States
As mentioned previously, the U.S. Constitution and treaties take precedence over all other laws in the United States. Federal statutes take precedence over federal regulations. Valid federal law takes precedence over any conflicting state or local law. State constitutions rank as the highest state law. State statutes take precedence over state regulations. Valid state law takes precedence over local laws.
The following feature discusses law in the digital age.
Digital Law Law in the Digital Age
In a span of about three decades, computers have revolutionized society. Computers, once primarily used by businesses, have permeated the lives of most families as well. In addition to computers, many other digital devices are commonly in use, such as smart phones, tablets, televisions, digital cameras, and electronic game devices. In addition to the digital devices, technology has brought new ways of communicating, such as e-mail and texting, as well as the use of social networks.
The electronic age arrived before new laws were written that were unique and specific to this environment. Courts have applied existing laws to the new digital environment by requiring interpretations and applications. In addition, new laws have been written that apply specifically to this new environment. The U.S. Congress has led the way, enacting many new federal statutes to regulate the digital environment.
Critical Legal Thinking
The U.S. Supreme Court, comprised of nine justices chosen from the brightest legal minds in the country, often reach 5–4 decisions or other nonunanimous decisions. Why? Because each justice has analyzed the facts of a case and the legal issue presented, applied critical legal thinking to reason through the case, and come up with his or her own conclusion. But is one side right and the other wrong? No. It just means that each justice has done his or her best in examining, analyzing, evaluating, and interpreting the law and facts and deciding the case based on his or her unique sociological, political, educational, personal, and legal background.
The key is that each justice applied critical thinking in reaching his or her conclusion. Critical thinking is important to all subjects taken by college and university students, no matter what their major or what course is taken. But critical thinking in law courses—referred to as critical legal thinking—is of particular significance because in the law there is not always a bright-line answer; in fact, there seldom is. This is where the famous “gray area” of the law appears. Thus, the need for critical thinking becomes especially important in solving legal disputes.
Critical Legal Thinking
1. A method of thinking that consists of investigating, analyzing, evaluating, and interpreting information to solve a legal issue or case.
Defining Critical legal thinking
What is critical legal thinking? Critical legal thinking consists of investigating, analyzing, evaluating, and interpreting information to solve simple or complex legal issues or cases. Critical legal thinking improves a person’s problem-solving skills and helps him or her make clear, logical, rational, and well-reasoned conclusions and judgments.
Critical legal thinking requires intellectually disciplined thinking. This requires a person to recognize and identify problems, engage in logical inquiry and reasoning, evaluate information and appraise evidence, consider alternative perspectives, question assumptions, identify unjustified inferences and irrelevant information, evaluate opposing positions and arguments, and assess one’s own thinking and conclusions.
Your professor has a deep understanding of critical legal thinking, that he or she has developed during years of study in law school, in teaching and scholarship, and often in private practice or government employment as well. Over the course of the semester, he or she will impart to you not only his or her knowledge of the law but also a unique and intelligent way of thinking through and solving complex problems. Critical legal thinking can serve twenty-first-century students and leaders.
Socratic Method
In class, many law professors use the Socratic method when discussing a case. The Socratic method consists of the professor asking students questions about a case or legal issue to stimulate critical thinking by the students. This process consists of a series of questions and answers and a give-and-take inquiry and debate between a professor and the students. The Socratic method stimulates class discussions. Good teachers recognize and focus on the questions and activities that stimulate the mind. Discussing current events using the Socratic method is also often used in the classroom setting.
Socratic method
A process that consists of a series of questions and answers and a give-and-take inquiry and debate between a professor and students.
Critical legal thinking requires special application in the digital age. Juries and judges are often called on to apply laws enacted prior to the digital age to cases and legal issues that arise in the electronic environment and that had not been contemplated when the law was enacted. Critical legal thinking must also be used by the U.S. Congress and state legislatures as they enact new laws that specifically address new issues of the digital environment.
IRAC Method
Legal cases are usually examined using the following critical legal thinking method. First, the facts of the case must be investigated and understood. Next, the legal issue that is to be answered must be identified and succinctly stated. Then the law that is to be applied to the case must be identified, read, and understood. Once the facts, law, and legal issue have been stated, critical thinking must be used in applying the law to the facts of the case. This requires that the decision maker—whether a judge, juror, or student—analyze, examine, evaluate, interpret, and apply the law to the facts of the case. Last, the critical legal thinker must reach a conclusion and state his or her judgment. In the study of law, this process is often referred to as the IRAC method (IRAC is an acronym that stands for issue, rule, application, and conclusion), as outlined in the following:
IRAC method
A method used to examine a law case. IRAC is an acronym that stands for issue, rule, application, and conclusion.
· I = What is the legal issue in the case?
· R = What is the rule (law) of the case?
· A = What is the court’s analysis and rationale?
· C = What was the conclusion or outcome of the case?
This text—whether in its print or electronic version—offer students ample opportunities to develop and apply critical legal thinking. The text contains real-world cases in which actual disputing parties have become embroiled. The law cases are real, the parties are real, and the decisions reached by juries and judges are real. Some cases are easier to decide than others, but all provide a unique set of facts that require critical legal thinking to solve.
U.S. Supreme Court Case
Let us examine how critical legal thinking is applied by the U.S. Supreme Court. Following is the Supreme Court’s decision of an important voting rights case.
CASE 1.2 U.S. SUPREME COURT CASE Voting Rights Act Shelby County, Texas v. Holder
133 S.Ct. 2612, 2013 U.S. Lexis 4917 (2013) Supreme Court of the United States
“The Act has proved immensely successful at redressing racial discrimination and integrating the voting process.”
—Roberts, Chief Justice, delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas, and Alito joined.
Facts
The Fifteenth Amendment was added to the U.S. Constitution in 1870, following the Civil War. It provides that the right of citizens of the United States to vote shall not be denied or abridged by the federal or state governments on account of race, color, or previous conditions of servitude, and gives Congress the power to enact laws to enforce the amendment.
During the first century after the Fifteenth Amendment, congressional enforcement of the Amendment was a complete failure. Many states enacted literacy and knowledge tests, enforced good moral character requirements, created the need for vouchers from registered voters, and intimidated voters to prevent minority citizens from qualifying to vote or prevent them from voting should they meet the requirements. Based on these impairments, voting by minority citizens, particularly African Americans, was substantially lower than it was for white voters.
In 1965, Congress enacted the Voting Rights Act. Section 2 forbids any standard, practice, or procedure that denies or abridges the right of any citizen to vote on account of race or color. Section 4(b) provides a coverage formula that identified six states—Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia—that maintained illegal voting requirements that substantially reduced minority voter turnout. Section 5 stipulates that the covered states could not make any changes to voting districts or voting procedures without clearance from federal authorities in Washington DC. Portions of other states, including Texas, were added to the list of covered jurisdictions.
The Voting Rights Act, which was originally enacted for five years, had been reauthorized by Congress for more than forty years. In 2006, Congress reauthorized the Voting Rights Act for 25 years. Shortly after the 2006 reauthorization, a Texas voting district challenged the constitutionality of the special coverage provision of the Voting Rights Act. The U.S. district court and the U.S. court of appeals upheld this provision. The U.S. Supreme Court agreed to hear the appeal.
Issue
Is the coverage provision of the Voting Rights Act that singles out several states for the federal clearance requirement constitutional?
Language of the U.S. Supreme Court
Census Bureau data from the most recent election indicate that African-American voter turnout exceeded white voter turnout in five of the six States originally covered by Section 5, with a gap in the sixth State of less than one half of one percent. There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination and integrating the voting process.
A statute’s current burdens must be justified by current needs, and any disparate geographic coverage must be sufficiently related to the problem that it targets. The coverage formula met that test in 1965, but no longer does so. Coverage today is based on decades-old data and eradicated practices.
Decision
The U.S. Supreme Court held that the coverage provision of the Voting Rights Act that requires clearance by the federal government for covered states to make changes to voting districts and other voting requirements is unconstitutional.
Dissenting Opinion
Ginsburg, Justice, filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.
Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made. After exhaustive evidence-gathering and deliberative process, Congress reauthorized the Voting Rights Act, including the coverage provision, with overwhelming bipartisan support. In my judgment, the Court errs egregiously by overriding Congress’ decision.
Ethics Questions
1. When Congress enacted the Voting Rights Act in 1965, was there sufficient justification to do so? Was it ethical for states to adopt impairments to minority voters? Was the special requirement for designated states to seek federal approval before making voting changes necessary in 1965? Do you think that such a requirement is necessary today?
Key Terms and Concepts
1. Administrative agencies ( 13 )
2. Administrative rules and regulations ( 13 )
3. Analytical School ( 7 )
5. Brown v. Board of Education ( 5 )
9. Codified law ( 12 )
10. Command School ( 7 )
12. Conference committee ( 12 )
13. Constitution of the United States of America ( 11 )
14. Court of Chancery (equity court) ( 10 )
15. Critical Legal Studies School ( 8 )
16. Critical legal thinking ( 16 )
17. English common law ( 9 )
18. Executive branch (president) ( 11 )
19. Executive order ( 13 )
20. Federal statute ( 12 )
21. French Civil Code of 1804 (the Napoleonic Code) ( 11 )
22. German Civil Code of 1896 ( 11 )
23. Historical School ( 7 )
24. IRAC method ( 16 )
25. Judicial branch (courts) ( 11 )
26. Judicial decision ( 14 )
27. Jurisprudence ( 6 )
29. Law and Economics School (Chicago School) ( 8 )
30. Law courts ( 10 )
31. Law Merchant ( 10 )
32. Legislative branch (Congress) ( 11 )
33. Merchant Court ( 10 )
34. Moral theory of law ( 6 )
35. Natural Law School ( 6 )
39. Romano-Germanic civil law system ( 11 )
40. Sociological School ( 7 )
41. Socratic method ( 16 )
42. Stare decisis ( 14 )
43. State constitution ( 11 )
44. State statute ( 13 )
46. Subcommittee ( 12 )
48. U.S. Congress ( 12 )
49. U.S. House of Representatives ( 12 )
50. U.S. Senate ( 12 )
Law Case with Answer Minnesota v. Mille Lacs Band of Chippewa Indians
1. Facts When the Constitution was ratified by the original colonies in 1788, it delegated to the federal government the exclusive power to regulate commerce with Native American tribes. During the next 100 years, as the colonists migrated westward, the federal government entered into many treaties with Native American nations. One such treaty was with the Ojibwe Indians in 1837, whereby the tribe sold land located in the Minnesota territory to the United States. The treaty provided, “The privilege of hunting, fishing, and gathering wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians.”
The state of Minnesota was admitted into the Union in 1858. In the late 1900s, the state of Minnesota began interfering with the Native American treaty rights, particularly concerning hunting and fishing rights. Minnesota wanted to restrict the hunting and fishing rights granted in the federal treaty. In 1990, the Mille Lacs Band of the Ojibwe Indians sued the state of Minnesota, seeking declaratory judgment that they retained the hunting, fishing, and gathering rights provided in the 1837 treaty and an injunction to prevent Minnesota from interfering with those rights. The state of Minnesota argued that when Minnesota entered the Union in 1858, those rights were extinguished. Were the treaty rights granted to the Mille Lacs Band of the Ojibwe Indians by the federal government in 1837 extinguished when the state of Minnesota was admitted as a state in 1858?
Answer
No, the treaty rights granted to the Mille Lacs Band of the Ojibwe Indians by the federal government in 1837 were not extinguished when the state of Minnesota was admitted as a state in 1858. The state of Minnesota argued that the Ojibwe’s rights under the treaty were extinguished when Minnesota was admitted to the Union. But in making this legal argument, the state of Minnesota was wrong. There is no clear evidence of federal congressional intent to extinguish the treaty rights of the Ojibwe Indians when Minnesota was admitted as a state in 1858. The language admitting Minnesota as a state made no mention of Indian treaty rights. Therefore, the Ojibwe Indians still possess those treaty rights. It was unfair of the state of Minnesota to try to extinguish clearly delineated legal rights granted to the Ojibwe Native Americans more than 150 years before. The state of Minnesota was obviously unfairly trying to take away rights granted to Native Americans so that others in society—namely non–Native American hunters and fishers—would benefit. The hunting, fishing, and gathering rights guaranteed to the Ojibwe Native Americans in the 1837 treaty are still valid and enforceable. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S.Ct. 1187, 1999 U.S. Lexis 2190 (Supreme Court of the United States)
Critical Legal Thinking Cases
1. 1.1 Fairness of the Law In 1909, the state legislature of Illinois enacted a statute called the Woman’s Ten-Hour Law. The law prohibited women who were employed in factories and other manufacturing facilities from working more than 10 hours per day. The law did not apply to men. W. C. Ritchie & Co., an employer, brought a lawsuit that challenged the statute as being unconstitutional, in violation of the equal protection clause of the Illinois constitution. In upholding the statute, the Illinois Supreme Court stated,
It is known to all men (and what we know as men we cannot profess to be ignorant of as judges) that woman’s physical structure and the performance of maternal functions place her at a great disadvantage in the battle of life; that while a man can work for more than 10 hours a day without injury to himself, a woman, especially when the burdens of motherhood are upon her, cannot; that while a man can work standing upon his feet for more than 10 hours a day, day after day, without injury to himself, a woman cannot; and that to require a woman to stand upon her feet for more than 10 hours in any one day and perform severe manual labor while thus standing, day after day, has the effect to impair her health, and that as weakly and sickly women cannot be mothers of vigorous children.
We think the general consensus of opinion, not only in this country but in the civilized countries of Europe, is, that a working day of not more than 10 hours for women is justified for the following reasons: (1) the physical organization of women, (2) her maternal function, (3) the rearing and education of children, (4) the maintenance of the home; and these conditions are, so far, matters of general knowledge that the courts will take judicial cognizance of their existence.
Surrounded as women are by changing conditions of society, and the evolution of employment which environs them, we agree fully with what is said by the Supreme Court of Washington in the Buchanan case; “law is, or ought to be, a progressive science.”
Is the statute fair? Would the statute be lawful today? Should the law be a “progressive science”? W. C. Ritchie & Co. v. Wayman, Attorney for Cook County, Illinois, 244 Ill. 509, 91 N.E. 695, 1910 Ill. Lexis 1958 (Supreme Court of Illinois)
Ethics Case
1. 1.2 Ethics Case In 1975, after the war in Vietnam, the U.S. government discontinued draft registration for men in this country. In 1980, after the Soviet Union invaded Afghanistan, President Jimmy Carter asked Congress for funds to reactivate draft registration. President Carter suggested that both males and females be required to register. Congress allocated funds only for the registration of males. Several men who were subject to draft registration brought a lawsuit that challenged the law as being unconstitutional, in violation of the Equal Protection Clause of the U.S. Constitution. The U.S. Supreme Court upheld the constitutionality of the draft registration law, reasoning as follows:
The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. The foregoing clearly establishes that the decision to exempt women from registration was not the “accidental by-product of a traditional way of thinking about women.”
This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women are simply not similarly situated for purposes of a draft or registration for a draft.
Justice Marshall dissented, stating,
The Court today places its imprimatur on one of the most potent remaining public expressions of “ancient canards about the proper role of women.” It upholds a statute that requires males but not females to register for the draft, and which thereby categorically excludes women from a fundamental civil obligation. I dissent.
Rostker, Director of Selective Service v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 1981 U.S. Lexis 126 (Supreme Court of the United States)
1. What arguments did the U.S. Supreme Court assert to justify requiring males but not females to register for the draft?
2. Is the law, as determined by the U.S. Supreme Court, fair?
3. Do you agree with the dissent?
Notes
1. 1. The Spirit of Liberty, 3rd ed. (New York: Alfred A. Knopf, 1960).
2. 2. “Introduction,” in The Nature of Law: Readings in Legal Philosophy, M. P. Golding (New York: Random House, 1966).
3. 3. Black’s Law Dictionary, 5th ed. (St. Paul, Minnesota: West.
4. 4. 447 U.S. 10, 100 S.Ct. 1999, 1980 U.S. Lexis 127 (Supreme Court of the United States).
5. 5. Law and the Modern Mind (New York: Brentano’s, 1930).
6. 6. 163 U.S. 537, 16 S.Ct. 1138, 1896 U.S. Lexis 3390 (Supreme Court of the United States, 1896).
7. 7. 4 III. 301, 1841 Ill. Lexis 98 (Ill.).
8. 8. 417 Pa. 486, 208 A.2d 193, 1965 Pa. Lexis 442 (Supreme Court of Pennsylvania).
