discussion 2

Chapter 1

American Legal System (Myers, John E.B., 2016 Unpublished Draft Manuscript. With Permission)

What is law? The U.S. Supreme Court defined law as “the rules of action or

conduct duly prescribed by controlling authority, and having binding legal force.” (U.S.

Fidelity and Guaranty Co. v. Guenther, 1930), p. 37.

Sources of Law

In the United States, the laws that govern your life and impact your profession

come from several sources. You recall from high school that the United States has a

federal government and fifty state governments. Within each state you will find county,

city, school district, and other governing bodies that may have something to say about

how you do your work.

Federal Government

The highest law of the land is the U.S. Constitution. The Preamble to the

Constitution provides: “We the people of the United States, in order to form a more

perfect union, establish justice, insure domestic tranquility, provide for the common

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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.”

The Constitution is the bedrock of our law and our society.

Under the Constitution, the federal government is a government of limited, or

delegated, powers. The federal government possesses only those powers delegated to it

by the Constitution. Governmental powers not delegated to the federal government by the

Constitution are reserved to the states and to the people (U.S. Const., Amendment 10).

The U.S. Supreme Court and lower courts continue the never-ending task of defining the

extent and limits of federal power.

Article 1, Section 8 of the Constitution gives Congress the power “to make all

laws which shall be necessary and proper for carrying into execution the” powers

delegated by the Constitution to the federal government. The “necessary and proper”

clause gives Congress broad authority to enact legislation needed to implement the

delegated powers. In United States v. Comstock,(2010), for example, the issue before the

U.S. Supreme Court was whether the necessary and proper clause gave Congress

authority to enact a civil commitment law to detain sexually violent mentally ill federal

prisoners. The Supreme Court answered in the affirmative. The Court noted that the civil

commitment statute “constitutes a modest addition to a set of federal prison-related

mental-health statutes that have existed for many decades.” (p. 137).

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The Constitution divides the federal government into three branches: legislative,

executive, and judicial. The power to enact legislation is vested in the legislative branch,

or Congress (Article I). Laws passed by Congress, and signed by the President, are

statutes, and are compiled in the United States Code. The annotated U.S. Code contains

more than 350 volumes of law.

The President is head of the Executive Branch (Article II). The Executive Branch

is home to hundreds of federal agencies, including, to name a few, Health and Human

Services (HHS), the Children’s Bureau (CB), the Centers for Disease Control and

Prevention (CDC), the Department of Justice (DOJ), The Defense Department (DOD),

and the Food and Drug Administration (FDA).

Agencies of the Executive Branch have authority to promulgate regulations that

are needed to implement statutes passed by Congress. Federal regulations are collected in

the Code of Federal Regulations (CFR). Federal regulations, like statutes, are law.

The third branch of the federal government is the Judicial Branch (Article III),

which consists of the U.S. Supreme Court, and lower federal courts created by Congress.

The federal judiciary has three levels: The Supreme Court sits atop. Below the Supreme

Court, the nation is divided into thirteen judicial circuits, each presided over by a Federal

Circuit Court of Appeal. For example, the Ninth Circuit Court of Appeal embraces

Hawai’i, Alaska, Washington, Oregon, California, Nevada, Montana, Idaho, and Arizona.

The Fifth Circuit Court of Appeal covers Texas, Louisiana, and Mississippi.

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In the federal system, trial courts—courts where trials are held—are Federal

District Courts. Federal trial judges are District Court Judges. Nearly all federal court

cases begin in the District Court. Federal courts have authority over matters involving

federal civil and criminal law. As well, federal courts have what is commonly called

“diversity jurisdiction,” which allows a citizen of one state to sue a citizen of another

state in federal court.

Of interest to readers of this book, there are federal criminal laws to punish

interstate stalking (18 U.S.C. § 2261A) and domestic violence that crosses state lines (18

U.S.C. § 2261). The federal Violence Against Women Act can be enforced in federal

court. Federal courts, as well as state courts, enforce civil rights laws.

The party who loses a case in the district court may appeal to the appropriate

Federal Circuit Court of Appeal. The loser in the Court of Appeal may appeal to the U.S.

Supreme Court, but the High Court has discretion regarding which appeals to accept, and

the Supreme Court accepts only a small fraction of cases.

Law suits for divorce, spousal and child support, and child custody are not

litigated in federal court. In Ankenbrandt v. Richards (2001), the U.S. Supreme Court

ruled that the so-called “domestic relations exception” to the authority of federal courts

divests federal courts of authority over matters of divorce, alimony, and child custody.

Thus, family law matters are handled in state court.

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There is one aspect of family law that can be litigated in federal court. The United

States is a party to the Hague Convention on the Civil Aspects of International Child

Abduction, an international treaty that facilitates the return of children wrongfully

removed by parents from their home country. Cases under the Hague Convention can be

litigated in federal or state court. The Hague Convention is discussed in Chapter 5.

Federal judges are nominated by the President and confirmed by the U.S. Senate.

Federal judges serve for life. Judges of the District Court, Judges of the Court of Appeal,

and Justices of the Supreme Court are sometimes called Article III judges because their

positions are articulated in Article III of the U.S. Constitution.

At the trial court level, in addition to District Court Judges, the federal judiciary

consists of Bankruptcy Judges and Magistrate Judges. Federal magistrate judges are

appointed by the district courts judges within a federal judicial district, and handle a

broad range of legal matters.

Supremacy Clause of the U.S. Constitution

What happens when a state law is inconsistent with the U.S. Constitution, a

federal statute, or a federal regulation? The answer is supplied by Article VI of the U.S.

Constitution—the so-called Supremacy Clause—which states that federal laws “shall be

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the supreme law of the land.” A state law that conflicts with federal law is

unconstitutional. A famous example is Cooper v. Aaron (1958), decided by a unanimous

U.S. Supreme Court in 1958.

To understand Cooper v. Aaron, it is necessary to go back four years, to 1954, the

year that the U.S. Supreme Court handed down the momentous decision in Brown v.

Board of Education (1954), outlawing racial segregation in public schools. The Brown

Court ruled that segregation violates the equal protection of the law guaranteed by the

Fourteenth Amendment to the U.S. Constitution. The Supreme Court ordered states to

dismantle segregation “with all deliberate speed.” Following Brown, the school board in

Little Rock, Arkansas proceeded with planning to integrate the city’s schools, starting

with Central High School. However, the Arkansas Legislature passed laws attempting to

nullify the Supreme Court’s decision in Brown, and Governor Orval Faubus deployed the

National Guard to block African American students from entering Central High. Due in

part to the extreme hostility to integration, fueled by the Legislature and the Governor,

the school board asked a federal district court judge to postpone integration for two-and-

a-half-years. The judge granted the school board’s request, finding that Central High was

afflicted with “chaos, bedlam and turmoil,” and that threats had been made against school

administrators and the nine African American students—the Little Rock Nine—brave

enough to enroll at Central High.

When the case reached the U.S. Supreme Court, the Court ruled that the district

court judge was wrong to postpone integration. The Supreme Court wrote, “The

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constitutional rights of [African American children] are not to be sacrificed or yielded to

the violence and disorder which have followed upon the actions of the Governor and

Legislature. . . . The constitutional rights of children not to be discriminated against in

school admission on grounds of race or color declared by this Court in the Brown case

can neither be nullified openly and directly by state legislators or state executive or

judicial officers, nor nullified indirectly by them through evasive schemes for segregation

whether attempted ingeniously or ingenuously.” (p. 17).

Efforts by Arkansas legislators and the Governor to nullify the Supreme Court’s

desegregation ruling in Brown ran afoul of the Supremacy Clause, and could not stand.

The U.S. Constitution, including the right to equal protection of the law, is the “supreme

law of the land.” The racist efforts of state officials failed.

State and Local Government

Each state has its own constitution which, like the U.S. Constitution, divides

government into three branches: legislative, executive, and judicial. The legislature

passes statutes, which are collected in a state code. The executive branch of each state is

led by the state’s governor. Agencies of the executive branch promulgate regulations.

Like their federal counterparts in the Code of Federal Regulations, state regulations have

the force of law. The state judiciary is made up of trial and appellate courts. The state

supreme court is the highest appellate court, except in New York, where the Supreme

Court is the trial court, and the highest court is the Court of Appeals. In Maryland, the

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highest court is the Court of Appeals. In all but a few sparsely populated states, an

intermediate appellate court sits between the trial courts and the state supreme court.

Each state contains entities of local government: counties (parishes in Louisiana),

cities, towns, and various types of authorities (e.g., fire districts). Local government

entities (e.g., counties) pass laws called ordinances. For example, most counties have a

curfew ordinance requiring teenagers to be home at night.

Unique Role of the U.S. Supreme Court

The U.S. Supreme Court is one of the most important, revered, and, at times,

reviled institutions in America. Decisions of the Supreme Court impact the lives of

everyone. The Court’s monumental decision in Brown v. Board of Education, outlawing

school segregation, is mentioned above.

Another groundbreaking decision is Loving v. Virginia (1967), where the

Supreme Court struck down laws against interracial marriage—anti-miscegenation laws.

At mid-twentieth century, twenty-nine states prohibited interracial marriage.

Richard Loving and Mildred Jeter grew up in the tiny rural community of Central

Point, Virginia. Richard was white. Mildred was part African American and part Native

American. When Richard was twenty-four and Mildred eighteen, they decided to marry,

but marriage between races was a crime in Virginia. They drove to Washington, D.C., got

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married, and drove home to Virginia, where, a few weeks later, they were arrested in the

middle of the night by the sheriff, who told them their marriage license was “No good

here.” The couple was charged with violating Virginia’s Racial Integrity Act. A local

judge convicted them and sentenced them to one year in jail, but said he would suspend

the sentence if Richard and Mildred left Virginia for at least twenty-five years. The

couple moved to Washington, D.C., but Mildred didn’t like city life, and the Lovings and

their children often snuck home to visit.

In 1963, Mildred wrote a letter to Robert Kennedy, Attorney General of the

United States, asking if the Justice Department might help. Kennedy referred Mildred’s

letter to the American Civil Liberties Union. Two young ACLU lawyers, Bernard Cohen

and Philip Hirschkop, both barely out of law school, took the case all the way to the U.S.

Supreme Court. In the landmark Loving decision, the Supreme Court struck down

Virginia’s anti-miscegenation law as a violation of the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment. Writing for the Supreme Court, Chief

Justice Warren wrote, “Marriage is one of the basic civil rights of man, fundamental to

our very existence and survival. To deny this fundamental freedom on so unsupportable a

basis as the racial classifications embodied in these statutes, classifications so directly

subversive of the principle of equality at the heart of the Fourteenth Amendment, is

surely to deprive all the State’s citizens of liberty without due process of law. The

Fourteenth Amendment requires that the freedom of choice to marry not be restricted by

invidious racial discriminations. Under our Constitution, the freedom to marry or not

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marry, a person of another race resides with the individual and cannot be infringed by the

State.” (p. 12)

You may have noticed that in Loving v. Virginia, the U.S. Supreme Court, a

federal court, struck down a state law. What gave a federal court the right to rule on a

state law? The answer, which was mentioned earlier, is that the U.S. Constitution is the

supreme law of the land, superior to state law. The U.S. Supreme Court is the final arbiter

of the U.S. Constitution. Thus, the Supreme Court has authority to strike down state

statutes that violate the federal Constitution. Although Loving v. Virginia was originally

brought in state court, the case ended up in the U.S. Supreme Court because the Virginia

anti-miscegenation statute violated the U.S. Constitution.

Loving v. Virginia struck down barriers to interracial marriage. In 2015, in

Obergefell v. Hodges (2015), the Supreme Court did the same to barriers to same sex

marriage. The Court ruled that prohibitions against same sex marriage violate

fundamental principles of fairness and equality. Justice Kennedy wrote the majority

opinion in Obergefell, and stated:

The Constitution promises liberty to all within its reach, a liberty

that includes certain specific rights that allow persons, within a lawful

realm, to define and express their identity. The petitioners in these cases

seek to find that liberty by marrying someone of the same sex and having

their marriages deemed lawful . . . . (p. 2593).

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The centrality of marriage to the human condition makes it

unsurprising that the institution has existed for millennia and across

civilizations. Since the dawn of history, marriage has transformed strangers

into relatives, binding families and societies together. . . . There are untold

references to the beauty of marriage in religious and philosophical texts

spanning time, cultures, and faiths, as well as in art and literature in all their

forms. . . . (p. 2594).

That history is the beginning of these cases. The [opponents of

same sex marriage] say it should be the end as well. To them, it would

demean a timeless institution if the concept and lawful status of marriage

were extended to two person of the same sex. Marriage, in their view, is by

its nature a gender-differentiated union of man and woman. This view long

has been held—and continues to be held—in good faith by reasonable and

sincere people here and throughout the world. (p. 2594).

The petitioners acknowledge this history, but contend that these

cases cannot end there. Were their intent to demean the revered idea and

reality of marriage, the petitioners’ claims would be of a different order.

But that is neither their purpose nor their submission. To the contrary, it is

the enduring importance of marriage that underlies the petitioners’

contentions. This, they say, is their whole point. Far from seeking to

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devalue marriage, the petitioners seek it for themselves because of their

respect—and need—for its privileges and responsibilities. (p. 2594).

Inspiring prose from the Supreme Court, and one of it’s the most important

justices.

When you hear about the U.S. Supreme Court, you may encounter the Latin term

“writ of certiorari.” A writ is a court order. A writ of certiorari is a writ issued by a

superior court, ordering a lower court to send the record of the lower court to the superior

court for review. Every year, the U.S. Supreme Court receives approximately 10,000

applications for writ of certiorari, asking the Supreme Court to review lower court

decisions. The Supreme Court grants 75 to 80 writs a year. In the Loving and Obergefell

cases, attorneys filed applications for the writ of certiorari in the Supreme Court.

Fortunately, for the parties, and for the rest of us, the Court issued writs and decided

these landmark cases.

The United States is a Common Law Country

Legislatures make law; they do so by passing statutes. Appellate courts also make

law, but, of course, appellate courts do not pass statutes. Appellate courts make law

through written opinions in individual cases. Judge-made law is called common law.

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For centuries in England, judges had authority to create common law, and nations

that inherited the English legal system—former colonies—adopted the principle of judge-

made common law. A California statute that is similar to statutes in other states

acknowledges common law: “The common law of England, so far as it is not repugnant

to or inconsistent with [federal and California law] is the rule of decision in all the courts

of this state” (Cal. Civil Code § 22.2).

Adversary System of Justice

Disputes between individuals, and disputes between individuals and the

government, are resolved many ways. The vast majority of disagreements are disposed of

informally through negotiation and compromise. Abe Lincoln, who practiced law in

Illinois for twenty-five years before becoming President, urged his fellow lawyers to help

people settle disagreements without going to court. He wrote, “Discourage litigation.

Persuade your neighbors to compromise whenever you can. Point out to them how the

nominal winner is often the real loser—in fees, expenses, and waste of time. As a

peacemaker the lawyer has a superior opportunity of being a good man. There will still be

business enough.” (Notes for a Law Lecture) When compromise and mediation are not

possible, litigation in court “is society’s last line of defense in the indispensable effort to

secure the peaceful settlement of social conflicts.” (Hart & McNaughton, 1958, p. 52).

In the United States, litigation is based on the adversary system developed long

ago in England. The adversary system is premised on the belief that the most effective

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way to arrive at just results in court is for each side of a controversy to present the

evidence that is most favorable to its position, and let a neutral judge or jury sift through

the conflicting evidence and decide where the truth lies. In other words, the truth emerges

from the clash of opposing evidence.

Professionals not trained in law sometimes shake their heads at the adversary

process, and find themselves thinking, “These lawyers are a strange lot. How do they

expect to find the truth when they seem to spend half their time hiding it from each other,

and the other half obfuscating the facts with squabbles over inconsequential details?”

There is an old lawyer joke: The kindly judge said to the witness, “You seem to be in

some distress; is anything the matter?” The witness replied, “Well, your honor, I swore to

tell the truth, the whole truth, and nothing but the truth, but every time I try, some lawyer

objects!” Despite shortcomings, the adversary system has stood the test of time. Perhaps,

in the future, a better system will emerge, but not in your professional lifetime. When you

head to court, the adversary system awaits you.

It is important to add that court is not always adversarial. Some court proceedings

are designed to minimize confrontation. A good example is juvenile court proceedings to

protect children. Juvenile court protective proceedings are intended to safeguard children

and help parents. Hearings in juvenile court are typically informal and non-adversarial,

although some juvenile court cases are highly contested. Litigation in family court

regarding divorce, child custody, and support is often adversarial, although efforts are

made to tamp down conflict. Many cities have specialized courts such as drug court and

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veterans’ court, where the emphasis is treatment and positive reinforcement for

constructive behavior.

Regardless of the type of case, lawyers are officers of the court, and are expected

to act civilly toward the judge, witnesses, and each other. In a California case where

attorneys went over the top with aggression, the Court of Appeal reminded lawyers of the

importance of civility, writing, “We close this discussion with a reminder to counsel—all

counsel, regardless of practice, regardless of age—that zealous advocacy does not equate

with ‘attack dog’ or ‘scorched earth;’ nor does it mean lack of civility. Zeal and vigor in

the representation of clients are commendable. So are civility, courtesy, and cooperation.

They are not mutually exclusive” (Marriage of Davenport (2011) p. 1537).

In your dealings with lawyers in and out of court, you will find that most are

honest and reasonable. Good heavens, some apparently intelligent people have actually

been known to marry lawyers! Of course, there are some lawyers who are pugnacious,

aggressive, and generally unpleasant. Such members of the bar are relatively uncommon,

although they poison the well for the rest of the profession. One of my favorite lawyer

jokes is: Ninety-eight percent of lawyers ruin things for the other two percent.

Lawyers are required by their code of ethics to be zealous advocates for their

clients. In court, a lawyer’s job is to win the case, and if winning necessitates being

aggressive with witnesses, including expert witnesses, the lawyer is aggressive. Non-

attorneys sometimes shake their heads when they observe lawyers battling it out in court,

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only to see the same lawyers engaged in friendly conversation after court. In some

respects, a lawyer is like a professional fighter, trying to knock out the opponent. When

the fight is over, it is common for fighters to embrace. Fighters don’t hate each other;

they have a job to do. So do lawyers.

Right to Jury Trial

Federal and state constitution’s guarantee the right to trial by jury in most

criminal cases and many civil matters. By long tradition, in most states, juries are not

used in juvenile court and family court (divorce, child custody). When there is no jury,

the judge fulfills the role performed by a jury: to determine the facts and reach a verdict.

Trials without a jury are called bench trials or trials to the court. Lawyers often refer to

the jury as the trier of fact. When there is no jury, the judge is the trier of fact.

Ambivalence About Lawyers

Americans love to hate lawyers. Yet, Americans understand that lawyers are

indispensable to law and justice. Some of our greatest role models are lawyers. Think of

Atticus Finch, the small town lawyer in Harper Lee’s classic To Kill a Mockingbird. Not

the Atticus you meet in Harper Lee’s 2015 Go Set a Watchman, but the Atticus you read

in high school or college, when you first picked up To Kill a Mockingbird. That Atticus

epitomizes the best of the legal profession—honesty, integrity, self-sacrifice, patience,

courage, and fierce loyalty to justice. Think too of Thurgood Marshall, the African

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American lawyer for the NAACP, who, during the civil rights movement, repeatedly

risked his life traveling in the deep South to strike legal blows against segregation.

Marshall became the first African American appointed to the U.S. Supreme Court. As

mentioned above, Abe Lincoln was a lawyer, and a darn good one. It seems fitting to let

Mark Twain have the last word about lawyers. He captures American’s ambivalence

about the legal profession: “Lawyers are like other people—fools on the average; but it is

easier for an ass to succeed in that trade than any other.”

A useful way to understand the chasm that sometimes separates attorneys from

mental health, medical, and social work professionals is to consider two hypothetical

college graduates, Jill and Sara. Both have bachelor’s degree in psychology, and both

have similar interests, temperament, and background. Jill goes to law school, and Sara

seeks a masters in social work. From the first day of graduate school, the neophyte

lawyer and social worker are embarked on different journeys.

Sara’s first social work class is Introduction to Social Theory. The first 20

minutes consist of introductions to allow students and teacher to get to know each other.

The remainder of the hour is a lecture.

Across campus at the law school, the first class is Contract Law. Class is held in a

theater-like room with 150 seats, all focused on the podium in the well. Students sit

nervously, awaiting the professor. The professor enters, places her book on the podium,

and consults the list of students. The first words out of the professor’s mouth are, “Good

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morning. This is Contracts. I am Professor Carter. Now, Ms. Jill Newman, what are the

facts in the case of Hawkins v. McGee?” For the next 30 minutes, Professor Carter grills

the terrified Jill with questions she cannot understand and points out the errors in her

answers. When the professor asks the class, “Are there any questions?” Dead silence.

There is no lecture—just dialogue between the professor and Jill. After class, Jill is

surrounded by sympathizers who say, “You did great.” To themselves, they think,

“Thank heaven Jill was the target, not me.”

Sara’s experience in the school of social work was very different from Jill’s in

law school. Jill and her classmates got their first taste of the adversary system. They

learned that their professors will force them to think critically under pressure, to analyze,

question, argue, challenge, debate, and respond to criticism—in short, to think and act

like a lawyer. As a social worker, Sara has the same need for critical thinking and

rigorous analysis, but she learns these skills from a different perspective. The emphasis in

social work is cooperation rather than competition, building bridges rather than

confrontation. From the first days of their professional lives, the social worker and the

lawyer march to different drummers. Is it any wonder that at graduation, Jill and Sara

seem to speak different languages?

Jill and Sara love children, and decide to devote themselves to helping victims of

child abuse and neglect. Sara, the social worker, takes the plunge into CPS, while Jill, the

attorney, joins the child abuse unit at the district attorney’s office. Not only must these

young professionals struggle to learn the intricacies of their new callings, they must learn

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to communicate and cooperate with each other. Communication, cooperation, and,

eventually, trust are essential because neither profession can achieve the goal of child

protection alone.

Now that we have described the basics of the legal system, Parts II and III dig

deeper. The chapters in Part II describe the criminal justice system. Part III focuses on

civil law, including family court, juvenile court, child protection, civil commitment, and

related civil law issues.

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