Chapter 1: Legal Heritage and the Information Age

Definition of Law

• Law is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force

  • To be obeyed and followed by citizens, subject to sanctions or legal consequences

Functions of the Law

1. Keeping the peace

   • Ex: some laws make certain activities crimes

2. Shaping moral standards

   • Ex: some laws discourage drug and alcohol abuse

3. Promoting social justice

   • Ex: some laws prohibit discrimination in employment

4. Maintaining the status quo

   • Ex: some laws prevent the forceful overthrow of the government

5. Facilitating orderly change

   • Ex: laws are enacted only after considerable study, debate, and public input

6. Facilitating planning

   • Ex: 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

   • Ex: laws allow for the settlement of cases prior to trial

     • Approximately 95% of all lawsuits are settled in this manner

8. Maximizing individual freedom

   • Ex: the rights of freedom of speech, religion, and association are granted by the First Amendment to the U.S. Constitution

Qualities of U.S. Law

(1) Fairness

• The U.S. legal system strives to be fair

• Note: 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

(2) Flexibility

• U.S. law evolves and changes along with the norms of society, technology, and the growth and expansion of commerce in the U.S. and the world

• Example The U.S. Supreme Court case Brown v. Board of Education because it overturned a past decision of the Court

Schools of Jurisprudential Thought

• Jurisprudence is the philosophy or science of law

• There are several different philosophies about how the law developed:

  1. Natural Law School

  2. Historical School

  3. Analytical School

  4. Sociological School

  5. Command School

  6. Critical Legal Studies School

  7. Law and Economics School

1. Natural Law School

• Law is based on what is “correct”

• Emphasizes a moral theory of law: 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

• Ex: U.S. Constitution, Magna Carta

2. Historical School

• Law is an aggregate of social traditions and customs that have developed over the centuries

• Changes in the norms of society will gradually be reflected in the law

• Law is an evolutionary process

• Legal scholars look to past legal decisions​ (precedent) to solve contemporary​ problems

3. Analytical School

• Law is shaped by logic

• Results are reached by applying principles of logic to specific facts of a case

  • Emphasis is on the logic of result rather than on how the result is reached

• Example When a bill is introduced in the U.S. House of Representatives or U.S. Senate, Democrat, Republican, third-party, and independent members often must reach a compromise for a law to be enacted.

4. Sociological School

• Law is a means of achieving and advancing certain sociological goals

• Purpose of law is to shape social behavior

• Unlikely to adhere to past law as precedent

• Ex: laws that make discrimination in employment illegal

5. Command School

• 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

• The 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.

6. Critical Legal Studies School

• Legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo

• Legal disputes should be solved by applying arbitrary rules based on notions of what is fair

• Subjective decision making by judges would be permitted

7. Law and Economics School

• Promoting market efficiency should be the central concern of legal decision making

• Also known as Chicago School

• Example The federal​ government's policy of subsidized housing provides incentives resulting in too many homes being​ built.

History of American Law

• English system of law (“English Common Law”) was adopted as a system of jurisprudence in early American colonies

• English Common Law is the foundation on which the American legal system is built

English Common Law

• Developed by judges who issued opinions when deciding cases

• Principles announced in cases became precedent for future judges deciding similar cases

• The English common law can be divided into cases decided by the law courts, equity courts, and merchant courts

Law Courts

• Law courts developed and administered a uniform system of law decreed by the kings and queens after William the Conqueror

• The main reason for the creation of law courts was to administer the law in a uniform manner

• Law at that time tended to emphasize the form (legal procedure) over the substance (merit) of a case

• The only relief available was monetary award for damages

Courts of Chancery (Equity Courts)

• The Court of Chancery grants relief based on fairness

• Formed to eliminate unfair results and limited remedies of law courts

• Equitable remedies 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

Merchant Courts

• The Merchant Court was a court in England that solved commercial disputes based on trade practices and usage

Sources of Law in the United States

1. Constitutions

2. Treaties

3. Federal Statutes

4. State Statutes

5. Ordinances

6. Executive Orders

7. Regulations and Orders of Administrative Agencies

8. Judicial Decisions

1. Constitutions

• The Constitution of the United States of America is the supreme law of the land

  • Any law that conflicts with it is unconstitutional and unenforceable

  • Known as a “living document” because it is so adaptable

  • Establishes structure of federal government

    • Legislative branch (Congress) — power to make (enact) laws

    • Executive branch (president) — power to enforce the law

    • Judicial branch (courts) — power to interpret and determine the validity of the law

• States have their own constitutions, which are often modeled on the U.S. Constitution

  • State constitutions are often patterned after the U.S. Constitution, although many are more detailed

  • Provisions of state constitutions are valid unless they conflict with the U.S. Constitution or any valid federal law

2. Treaties

• The President, with the advice and consent of two-thirds of the Senate, may enter into treaties with foreign governments

• A treaty is an agreement between two or more nations that is formally signed by an authorized representative of each nation and ratified by each nation

• Treaties become part of the supreme law of land

3. Federal Statutes

• Statutes are written laws enacted by the legislative branch of the federal and state governments that establish certain courses of conduct that covered parties must adhere to

• The U.S. Congress must find specific authority in the U.S. Constitution (such as the commerce, tax, and spend clauses) to enact federal statutes (statutes enacted by the U.S. Congress)

• Federal statutes are organized into code books (books that contain statutes enacted by the U.S. Congress and state legislatures and ordinances enacted by municipalities

  • Code books constitute codified law

4. State Statutes

• State legislatures enact state statutes

  • Placed in code books

  • Can be accessed in these hardcopy code books or online

• Ex: The Texas Natural Resources Code

5. Ordinances

• Ordinances are law enacted by local government bodies, such as cities and municipalities, counties, school districts, and water districts

• Ordinances are codified

6. Executive Orders

• An executive order is an order issued by a member of the executive branch of the government (president and state governors)

  • This power is derived from express delegation from the legislative branch and implied from U.S. Constitution and state constitutions

7. Regulations and Orders of Administrative Agencies

• Administrative agencies are agencies that the legislative and executive branches of federal and state governments establish

  • With the purpose to enforce and interpret statutes enacted by Congress and state legislatures

    Ex: SEC, and FTC

• Administrative rules and regulations are directives issued by federal and state administrative agencies that interpret the statutes that the agency is authorized to enforce

  • Have the force of law

• Administrative agencies usually have the power to hear and decide disputes

  • The decisions are called orders (a decision of an administrative law judge (ALJ) that is issued in the form of an administrative order)

8. Judicial Decisions

• A judicial decision is a decision in a lawsuit made by a federal or state court

  • A judge or justice usually explains the legal reasoning used to decide the case

• Federal and state courts issue judicial decisions

• Follows the doctrine of stare decisis

Doctrine of Stare Decisis

• The doctrine of stare decisis states that past court decisions become precedent for deciding future cases

  • “Let the decision stand”

  • Lower courts must follow precedent established by higher courts

• The courts of one jurisdiction are not bound by the precedents established by the courts of another jurisdiction, although they may look to each other for guidance

• The doctrine of stare decisis (1) promotes uniformity of law within a jurisdiction, (2) makes the court system more efficient, and (3) 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

Priority of Law in the United States

• The U.S. Constitution and treaties take precedence over all other laws

• Federal statutes take precedence over federal regulations

• Valid federal law takes precedence over 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

Digital Law

• The electronic age arrived before new laws were written that were specific for this environment

• Courts have applied existing laws to the new digital environment by requiring interpretations and applications

• Congress has enacted new federal statutes to regulate the digital environment

Critical Legal Thinking

• Critical legal thinking consists of investigating, analyzing, evaluating, and interpreting information to solve simple or complex legal issues or cases

  • Of significance because in the law, there is not always a bright-line answer; in fact, there seldom is

  • Requires intellectually disciplined thinking

• Improves a​ person's problem-solving skills and helps him or her to make​ clear, logical,​ rational, and​ well-reasoned conclusions and judgments

Socratic Method

• The Socratic method is a question and answer method used by law professors in class to stimulate class discussions and debate

• Give-and-take inquiry and debate between a professor and student

• Focus on the questions and activities that stimulate the mind

IRAC Method

• Used to examine a law case

• I (issue); R (rule); A (analysis); C (conclusion)

Case 1.1 Affirmative Action in University Admissions

• Case

  • Fisher v. University of Texas at Austin

  • Supreme Court of the United States

• Decision

  • The U.S. court of appeals affirmed, determining that the holistic admission standard of the University conformed to the Equal Protection Clause. Fisher appealed to the U.S. Supreme Court

  • Held that race-conscious admissions is lawful under the equal protection clause