The traditional path to a college degree isn't for everyone. Many individuals find themselves seeking education and personal development opportunities outside the confines of a formal degree program. Non-degree college courses have become increasingly popular for those who want to acquire new skills, explore their interests, and enhance their professional prospects without committing to a full degree. In this article, we will explore the world of non-degree college courses, shedding light on their benefits, types, and how to make the most of them. What Are Non-Degree College Courses? Non-degree college courses, often referred to as continuing education or adult education, encompass a wide array of learning opportunities offered by colleges and universities. These courses do not lead to a degree but instead provide a more flexible, accessible, and targeted approach to learning. Non-degree courses are designed for individuals of all backgrounds and ages who wish to gain specific know...
Introduction to Law
Law is a fundamental aspect of society that governs human behavior, resolves conflicts, and ensures order and justice. Understanding the nature and sources of law, as well as the concept of the rule of law, is crucial for individuals, businesses, and societies. In this introduction to law, we will explore these key concepts and their relevance to business and economic prosperity.
What is the law?
Law is a system of rules and regulations that are enforced by a recognized authority, such as a government or legal institutions, to maintain order and regulate human conduct. It serves several essential functions:
Order and Stability: The law establishes a framework for a stable and orderly society by defining rights, responsibilities, and acceptable behavior.
Conflict Resolution: It provides a mechanism for resolving disputes and conflicts among individuals, businesses, or government entities.
Protection of Rights: The law safeguards individual rights and freedoms, ensuring that people are treated fairly and justly.
Deterrence and Punishment: It discourages unlawful behavior by imposing penalties and sanctions for violations.
Where does our law come from?
The sources of law vary depending on the legal system of a particular country, but they can generally be categorized into the following:
Statutory Law: This consists of laws created by legislative bodies, such as Congress or Parliament, at the federal and state levels. These laws are written and codified and cover a wide range of legal issues.
Common Law: Common law is a system of law developed by courts through their decisions in individual cases. Precedents set by higher courts become binding on lower courts and guide future decisions.
Constitutional Law: Constitutional law is the fundamental law of a country, typically embodied in a written constitution. It establishes the structure of government and guarantees fundamental rights and freedoms.
Administrative Law: This body of law governs the activities and decisions of administrative agencies, which are created by governments to regulate specific industries or areas of public interest.
International Law: This encompasses agreements and treaties between nations, as well as customary practices that govern relations between countries.
What is the rule of law?
The rule of law is a foundational principle that ensures that no one, including government officials, is above the law. It encompasses the following key elements:
Equality Before the Law: All individuals and entities are subject to and equal under the law. No one should receive special treatment or be exempt from legal consequences.
Legal Certainty: The law must be clear, accessible, and predictable, so people can understand their rights and obligations.
Fair and Impartial Justice: The legal system should provide fair and impartial processes, including the right to a fair trial and due process.
Accountability: Those who enforce the law, including government officials, must be accountable for their actions. There should be mechanisms to challenge and remedy abuses of power.
How is the law relevant to business?
The law plays a significant role in the business world. It regulates various aspects of business operations, including:
Contracts: Business agreements are legally binding, and contract law governs their creation and enforcement.
Torts: Businesses can be held liable for harm caused to others through negligence or intentional wrongdoing.
Intellectual Property: Laws protect the rights of businesses and individuals to their intellectual property, such as patents, trademarks, and copyrights.
Employment Law: Regulations govern the relationship between employers and employees, covering issues like wages, working conditions, and discrimination.
Consumer Protection: Businesses must comply with laws that protect consumers from fraud, false advertising, and unsafe products.
Antitrust and Competition Law: These laws promote fair competition and prevent anti-competitive practices in the marketplace.
How does the study of the legal environment of business create a foundation for future business courses?
Studying the legal environment of business provides a strong foundation for future business courses by offering the following benefits:
Risk Management: Understanding the legal landscape helps businesses identify and manage legal risks, reducing the likelihood of costly disputes and legal complications.
Compliance: Knowledge of relevant laws and regulations ensures that businesses operate within the boundaries of the law, avoiding potential penalties and legal liabilities.
Ethical Decision-Making: Legal education encourages ethical business practices, promoting integrity and responsible behavior in the business world.
Strategic Planning: Legal considerations are essential in strategic decision-making, such as mergers and acquisitions, international expansion, and intellectual property management.
Conflict Resolution: An understanding of legal processes and dispute resolution mechanisms can help businesses efficiently navigate legal challenges when they arise.
In conclusion, law is a crucial element of society that influences business, economics, and everyday life. Understanding the nature and sources of law, as well as the principles of the rule of law, is essential for individuals and businesses to function effectively in a legal and ethical manner. The legal environment of business provides a solid foundation for future business courses by equipping students with the knowledge and skills to navigate the complex and dynamic legal landscape.
The intersection between law and economics apply in the context of the credit crisis, which often refers to the global financial crisis of 2007-2008. The financial crisis is a prime example of how legal and economic factors are deeply intertwined:
Regulation and Oversight: The financial crisis highlighted the importance of government regulation and oversight in the financial industry. In the years leading up to the crisis, regulatory authorities had relaxed certain rules and oversight, contributing to risky lending practices and financial instability. After the crisis, there was a push for increased regulation, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act in the United States, aimed at preventing similar crises in the future.
Banking and Financial Regulations: Laws and regulations governing banks and financial institutions have a profound impact on economic stability. For example, capital adequacy requirements (Basel Accords) and liquidity standards are designed to ensure that banks have enough financial resources to withstand economic downturns. These regulations have significant economic implications by influencing how banks operate and lend money.
Securities Law: Financial markets rely on securities regulations to ensure that investors are provided with accurate and transparent information. During the financial crisis, issues related to mortgage-backed securities and credit default swaps came to the forefront, raising questions about how these financial instruments were regulated and traded.
Contract Law: The financial crisis also exposed issues related to contract law, especially in the context of mortgage contracts and securitization. Legal issues surrounding the enforcement of contracts and the rights of parties in complex financial transactions played a crucial role in the crisis and its aftermath.
Bankruptcy Law: The economic consequences of the crisis led to a surge in bankruptcy filings, not only by individuals but also by major financial institutions. Bankruptcy law determines how assets are distributed among creditors and has a direct impact on economic recovery.
Monetary Policy and Central Banking: The response to the financial crisis involved significant interventions by central banks, such as the Federal Reserve in the United States. These actions, including lowering interest rates and implementing quantitative easing, had profound economic and legal implications, as they influenced lending, investment, and inflation.
Consumer Protection: The financial crisis had a substantial impact on consumers, leading to legal considerations related to foreclosure practices, debt collection, and the protection of consumers from predatory lending.
The intersection between law and economics is not limited to the financial crisis but extends to various aspects of economic life. Laws and regulations shape economic behavior and outcomes, and economic conditions often influence the development and reform of laws. Understanding this interplay is critical for economists, policymakers, legal professionals, and anyone interested in the dynamics of the modern economy.
Reflecting on the credit crisis and its impact, it becomes evident that our legal framework could have played a pivotal role in averting or mitigating the consequences of the crisis. For instance, had our laws regulated the incentive structures within the private industry more effectively, individual profit motives might not have superseded the financial institutions' need to manage risk and safeguard their stability. Similarly, stricter banking regulations limiting the range of services that banks could offer might have prevented the creation of exotic financial instruments that contributed to the crisis. If laws had imposed limits on the size of financial institutions, the notion that these entities were "too big to fail" could not have taken root. Furthermore, by legally restricting compensation packages, either in size or their link to performance, we could have curbed individual incentives to maximize profit at any cost.
This situation also raises ethical questions, particularly regarding the ethicality of loaning money to individuals who were incapable of servicing their debts.
As you delve deeper into the study of the legal environment of business, it's crucial to approach the subject with an open mind, free from preconceived notions. The legal field is complex and dynamic, far removed from the stereotypes perpetuated in popular fiction. While some misconceptions paint the legal system as a breeding ground for frivolous lawsuits and profit-driven attorneys, the reality is quite different. Frivolous lawsuits are generally not allowed to proceed in the legal system, and most attorneys are dedicated to upholding justice and fairness. They work diligently to protect their clients' legal interests and are not inclined to pursue baseless claims since the legal system doesn't reward such behavior.
In fact, most individuals and businesses have a strong incentive to abide by the law. Compliance with legal regulations not only saves money, time, and stress but also preserves personal and professional reputations. Even for those who might be cynical about ethical considerations, it makes economic sense to follow the rules of the game.
However, despite these incentives for compliance, legal disputes persist for several reasons. Laws can be ambiguous, and reasonable people may disagree on what is "right." Additionally, legal injuries can occur even in the best of circumstances, and individuals or entities with legitimate grievances need a mechanism to seek compensation for their losses. This underscores the importance of a robust legal system in addressing conflicts and ensuring justice in a complex and diverse society.
A central theme in the study of the legal environment revolves around the concept of responsibility. Many legal disputes aim to address the fundamental questions of "Who should be held responsible, and what should be the remedy for the harm caused?" Moreover, particularly in the context of business, a significant concern is how to proactively minimize exposure to legal liability. A comprehensive understanding of the legal environment of business serves as a powerful tool for reducing the risk of legal disputes and promoting a proactive approach to liability management. Furthermore, it equips individuals and organizations to recognize when they need legal counsel to navigate the intricacies of the legal landscape, which essentially establishes the rules of the game in our society. The law brings continuity, providing a reasonable expectation of how things will be based on past precedents, offering predictability and stability in our interactions.
It's essential to clarify that this book does not aim to teach readers how to practice law or conduct in-depth legal research, tasks typically undertaken by attorneys. Legal research is a sophisticated method used to ascertain the current state of the law concerning specific, narrowly defined legal issues. It guides behavior by helping individuals and entities adhere to the established rules of the game. When you encounter a specific legal issue, you should seek advice from your attorney, who will conduct the necessary research, inform you of the findings, and advise you on the decisions you must make regarding that particular matter.
The objectives of this book are practical in nature. Consider your study of the legal environment of business as a map for navigating your business endeavors. The goal is to teach you how to interpret this map effectively so that you can comprehend the law and its impact on your business and personal life. Beyond taking proactive steps to reduce legal liability, a solid understanding of the law also helps you avoid significant missteps. It's worth emphasizing that ignorance of the law is not a valid defense in the event of a legal violation.
This chapter provides a comprehensive introduction to the legal system. It commences with an exploration of the essence of the law and then delves into the sources of law, the significance of the rule of law, the reasons why the rule of law is crucial for businesses, and how the law intersects with various business disciplines like management, marketing, finance, and accounting. The chapter culminates in a discussion of the connection between the rule of law and economic prosperity, emphasizing the far-reaching impact of the legal environment on the business world.
Law is a dynamic and continuously evolving field that exerts a significant influence on all individuals, both in their personal lives and in their business interactions. Delving into the study of the legal environment of business equips us with the knowledge and insights necessary to address several crucial aspects:
Reducing Liability Risks: One of the primary objectives of studying the legal environment is to gain a deeper understanding of how to proactively minimize the risks associated with legal liability. This knowledge enables individuals and businesses to navigate their operations with greater caution and awareness, ultimately averting potential legal disputes.
Identifying Legal Issues Requiring Legal Counsel: By exploring the legal environment, we develop the ability to recognize situations and challenges that necessitate the expertise of an attorney. It serves as a practical guide to discern when to seek legal advice and how to engage effectively with legal professionals to address specific legal matters.
Establishing Links Between Business and the Law: An in-depth understanding of the legal environment uncovers the intricate connections between business practices and the legal framework. It highlights the ways in which the law impacts various aspects of business, from management and marketing to finance and accounting. This knowledge is crucial for making informed, legally compliant decisions in the corporate world.
In essence, the study of the legal environment of business equips us with the tools to proactively manage legal risks, recognize the need for legal counsel, and appreciate the profound interplay between law and the business landscape. It empowers individuals and organizations to navigate the dynamic field of law, fostering responsible and legally sound conduct in both personal and professional realms.
Understanding Jurisprudence and Its Significance:
Jurisprudence is the philosophical study of the nature, principles, and interpretation of the law. It seeks to explore the fundamental questions surrounding law, its purpose, and its relationship to society. The study of jurisprudence is essential for a deeper understanding of our laws and legal system for several reasons:
Interpretation and Application: Jurisprudence helps legal professionals and scholars understand how laws are interpreted and applied. It delves into the underlying principles that guide legal decision-making.
Ethical and Moral Considerations: Jurisprudence addresses the ethical and moral dimensions of law, considering questions of justice, fairness, and the role of law in society.
Legal Evolution: It provides insights into the evolution of legal systems, how they adapt to societal changes, and the development of new legal principles.
Policy Development: Jurisprudence plays a role in shaping legal policy by examining the theoretical underpinnings of laws and proposing reforms.
Distinguishing Law as Power, Legal Positivism, Legal Realism, and Natural Law:
Law as Power: This perspective views law as a tool of those in power to maintain their authority and control over society. It emphasizes the use of law to enforce social and political order. Critics argue that it can lead to oppressive regimes.
Legal Positivism: Legal positivism asserts that the validity of law is determined by its source or origin. In this view, a law is considered valid if it is created through the appropriate legal procedures, regardless of its moral or ethical content. It separates law from morality.
Legal Realism: Legal realism challenges the idea that law is objective and autonomous. It asserts that law is influenced by various factors, including social, economic, and political considerations. Legal realists argue that judges' decisions are shaped by their personal views and the context of the case.
Natural Law: Natural law theory posits that there are inherent, universal principles of morality and justice that transcend human-made laws. It asserts that laws must conform to these higher moral standards to be considered valid. Natural law theories often intersect with ethics and moral philosophy.
Examining Strengths and Criticisms of Jurisprudential Theories:
Strengths:
Legal Positivism: Provides a clear and objective basis for determining the validity of laws, promoting legal certainty.
Legal Realism: Acknowledges the influence of social, economic, and political factors on legal decisions, offering a more realistic view of how law operates in practice.
Natural Law: Appeals to a higher moral order, providing a basis for challenging unjust laws and promoting ethical decision-making in the legal field.
Criticisms:
Law as Power: Criticized for justifying authoritarian rule and the use of law to suppress dissent.
Legal Positivism: Criticized for divorcing law from morality, potentially allowing for morally questionable laws to be considered valid.
Legal Realism: Accused of undermining the concept of legal objectivity and predictability, which can raise concerns about consistency in legal decision-making.
Natural Law: Subject to interpretation, potentially leading to disputes over what constitutes the "natural" moral order.
Examples of Jurisprudential Theories:
Legal Positivism Example: A law passed by a totalitarian regime may be considered valid under legal positivism because it followed the prescribed legal procedures, even if it violates human rights and moral principles.
Legal Realism Example: A judge's decision in a discrimination case may be influenced by societal norms and values, demonstrating how the context and social factors play a role in legal outcomes.
Natural Law Example: Advocates for human rights may argue that a law allowing torture violates natural law principles of inherent human dignity, asserting that such a law is morally invalid.
Law as Power Example: In a dictatorship, laws may be used to suppress dissent and maintain the regime's authority, illustrating the use of law as a tool of power and control.
The study of jurisprudence offers a rich exploration of these theories and their implications for the legal system, fostering a deeper understanding of the law's nature and role in society.
Imagine you were asked to define "the law." How would you articulate it? Is a statement like "you should eat five fruits and vegetables a day" a law? What distinguishes a law from mere suggestions or well-intentioned advice? The critical distinction lies in the realm of enforcement and consequence. If you fail to consume five servings of fruits and vegetables daily, you won't find yourself imprisoned or facing fines. However, if you engage in theft or embezzlement, you could be subject to prosecution, substantial financial penalties, and even incarceration. In essence, law represents a set of rules enforced by a government authority.
Now, contemplate the essence of law further. Does the law encompass solely the explicit written words, or does it extend to the unspoken spirit of the law, the implicit intentions and values it embodies? Would you adhere to a law with which you fundamentally disagree, or would you choose to disregard it? Do you believe that the content of the law is as significant as the entity entrusted with its enforcement? Moreover, do you perceive morality as an integral part of legality, or do you maintain that morality operates independently from the law?
These inquiries yield a spectrum of responses contingent on the specific system of jurisprudence to which one subscribes. Not only do the responses diverge, but the potential outcomes of legal disputes can also fluctuate significantly, contingent on one's conception of what constitutes the law. These disparities underline fundamental disagreements concerning the very nature of law.
Jurisprudence, the philosophy of law, has sparked centuries of debate and contemplation, resulting in the formation of distinct schools of thought. These schools of thought encompass various theories of jurisprudence, which we will explore in the following paragraphs.
At its most fundamental interpretation, there exists a perspective that views law as a manifestation of power. In essence, this perspective contends that laws are obeyed because those in positions of authority issue commands, which are fortified by the implicit or explicit threat of force. This notion becomes evident when we consider instances where tyrannical rulers enact arbitrary or unjust laws. Even when such laws are perceived as morally flawed, if the sovereign possesses the means to enforce these "laws," they still hold the status of law. For instance, the Nazis executed six million Jews during World War II, citing German law as their authority. Saddam Hussein, too, routinely subjected political opponents and minority Sunni Muslims in Iraq to torture and execution under the umbrella of Iraqi law. Similarly, in Myanmar, the military regime, euphemistically referred to as the State Peace and Development Council, imprisoned the democratically elected and Nobel Peace Prize laureate, Aung San Suu Kyi, under the pretext of authority (an action taken under the color of authority). Advocates of the perspective that law is power often assert that coercion is an intrinsic and indispensable aspect of the legal system.
Let's delve into the concept of whether law is inherently a manifestation of power. Consider a scenario where an armed individual attempts to rob your store, and you find yourself compelled to comply with their demands. In this situation, the armed robber undeniably wields power over you, but it can be argued that they are not exercising the law. The crucial distinction lies in the fact that an armed robber does not hold the position of sovereign power. Now, contrast this with the authority exercised by a government that imposes compulsory military service, commonly known as the draft, under the threat of imprisonment for non-compliance. In this case, the sovereign government possesses the power to curtail our freedom should we fail to adhere to the prescribed rules. This exemplifies the undeniable force of power embedded in such a law.
Critics have raised several objections to the notion of law as mere power enforced through threats. They argue that if law is solely about power, it would render subjects of the law entirely subservient to those in power. For instance, examining the U.S. system of government reveals that citizens typically do not feel entirely subject to the government's whims. This is because individuals also possess power. They can elect their government officials, and they have the ability to vote out officials who fail to perform effectively. Thus, those in power are held accountable to the people. Other critiques highlight the observation that not all laws require the overt exercise or threat of power. Many of our laws rely on economic incentives, rather than the overt force of power, to encourage compliance. While penalty provisions may exist for violating these laws, these penalties may not be the primary drivers of compliance.
An alternative viewpoint is that of legal positivism, a perspective that contradicts the idea that law is solely an expression of power. Legal positivists assert that the law is essentially what it is explicitly stated to be in written, human-made rules. It is not derived from any source higher than human authority. Legal positivists do not engage in interpretations beyond the written text of the law. They may hold disagreements with the law as it is written, but they will comply with it as long as it emanates from a legitimate source. Positivists reject the notion that they possess an inherent right to defy a law they happen to disagree with, provided that the law originates from an authorized source. Moreover, legal positivists maintain that law is entirely distinct from ethical considerations, and they do not endorse the idea of inherent human rights beyond those established by the law. This perspective sharply contrasts with the natural rights viewpoint, as discussed in the following paragraphs.
Legal positivists hold a distinct perspective that diverges from the concept of law solely as an expression of power. According to their viewpoint, valid law must be created in accordance with established rules that authorize the sovereign to enact legislation. Within this framework, an arbitrary decree of law by a sovereign who deviates from the established rules for lawmaking would not be recognized as valid law. Furthermore, positivists would reject any rule or "law" introduced by an illegitimate ruler as legitimate law. Consequently, a legal positivist would not feel compelled to adhere to a law created under illegitimate circumstances.
To illustrate this, consider the draft scenario once more. Some individuals may possess strong moral objections to participating in armed conflicts with other humans. However, a legal positivist would unquestionably comply with a law mandating compulsory conscription, even if they might employ legal avenues to attempt to amend the law in question.
A prominent critique of legal positivism is that it seemingly restricts individuals from following their own moral compass when their personal ethics conflict with the laws of the sovereign. Nonetheless, for a positivist, the desirability of a law, whether it is deemed "good" or "bad," does not factor into the determination of what constitutes the law.
Critics argue that legal positivism carries limitations in its understanding of the scope of law. Some laws, for instance, appear to reflect moral principles. Take the prohibition against insider trading, for instance; it embodies the concept of fairness, which is fundamentally a moral consideration. Similarly, the concept of due process, which signifies fundamental fairness and decency in governmental actions, encompasses ideas of both fairness and a moral stance against cruelty. Furthermore, not all law originates from a written rule issued by a sovereign authority. For instance, international customary law has evolved through customary practices, making it valid law but not a set of rules handed down by a sovereign ruler.
An alternate perspective, known as legal realism, posits that the law itself is of lesser importance than the consideration of who wields the power to enforce it. Similar to legal positivists, legal realists acknowledge that the law is a human creation. However, their departure from positivism lies in the belief that the outcome of any legal matter hinges on the individual, such as a judge, who possesses the authority to wield power within the framework of the law. Furthermore, legal realists advocate for the incorporation of social and economic considerations into legal disputes, factors that may extend beyond the scope of the written law itself.
Imagine a legal realist bringing a dispute before a specific judge known for a certain inclination. In this scenario, the realist would anticipate that the judge's decision would reflect this leaning. For example, in a case arising under the Clean Water Act, if the defendant were a legal realist perceiving the judge as particularly stringent on environmental matters, the realist would not solely rely on the precise language of the Clean Water Act to predict the likely outcome. Instead, they would regard the judge's personal and professional views on water pollution as pivotal factors. Similarly, a realist plaintiff in the same case, who may not regard the Clean Water Act as particularly robust, might hope that the judge would consider the broader societal significance of clean water for human health, the natural environment, and non-human creatures.
Critics of legal realism argue that those empowered to wield the authority of the law over others should not bypass the checks and balances integral to our system of government by factoring in elements outside the realm of legitimate legal sources when rendering decisions. They contend that judges should exclusively consider the written law and nothing else when delivering judgments. In contrast, legal realists assert that judicial interpretation is not only necessary but also a mechanism contemplated by the Founding Fathers as an inherent check and balance in our government alongside the other branches.
Natural law represents the concept that human beings inherently possess certain unassailable rights that are not products of human-made legislation. This sets natural law apart from both positivism and realism in a critical manner. It asserts that humans have the capacity for reason, enabling them to discern moral truths independently. They are not automatons reliant on a sovereign authority to dictate what is right and wrong. Natural law adherents do not reject human-made laws; however, they acknowledge that these laws are subordinate to natural law in situations of conflict between the two.
Civil rights activists frequently draw upon natural law arguments to advance their causes, both in contemporary times and throughout history. For instance, a civil rights advocate might emphasize that irrespective of the written laws in place, racial discrimination is intrinsically unjust. If the written law permitted racial discrimination, natural law proponents would not regard that law as legitimate.
Each jurisprudential theory contributes to our comprehension of legal matters by offering distinct viewpoints on the same subject. Furthermore, depending on the philosophical standpoint, a single legal dispute may yield several equally valid potential outcomes. This recognition aids in identifying common ground among disputing parties while also highlighting the distinctions in their rationales.
Examples of Natural Law in Our Legal System or Governance:
Human Rights: Many legal systems incorporate the concept of natural rights, such as the right to life, liberty, and the pursuit of happiness. These rights are often considered inherent and not dependent on specific legal codes.
Constitutional Principles: In democratic nations, constitutional principles often reflect natural law ideas. For instance, the U.S. Constitution's emphasis on individual rights and the separation of powers aligns with natural law principles.
International Law: Some aspects of international law, such as the prohibition of genocide and the recognition of the right to self-determination, draw from natural law concepts.
Civil Disobedience: Advocates of civil disobedience often rely on natural law arguments to justify their actions, asserting that they are opposing unjust laws based on higher moral principles.
Whether to Follow the Letter or Spirit of the Law:
The importance of following the letter or spirit of the law can depend on the context and specific circumstances. Generally:
Letter of the Law: It is crucial to adhere to the specific wording of the law to maintain legal certainty and predictability. This is especially important in contractual matters and areas where precision is paramount.
Spirit of the Law: In cases where the strict interpretation of the law leads to unjust or unintended consequences, following the spirit of the law becomes essential. It allows for a more equitable and just outcome.
Examples of Law Without the Threat of Force or Power:
Contract Law: In contract law, parties voluntarily enter into agreements, and the legal system enforces these agreements through civil remedies (e.g., monetary damages) rather than the threat of physical force.
Tort Law: Tort law deals with civil wrongs, such as negligence or personal injury, where individuals seek compensation for harm caused by others. This area of law primarily relies on civil remedies and compensation, not the use of force.
Belief in Morals and Law:
The relationship between morals and law varies based on one's philosophical and jurisprudential beliefs. Some perspectives, like legal positivism, separate law and morality, asserting that legal validity is determined solely by established legal processes. Others, including natural law theory, argue that law and morality are intertwined, with legal principles reflecting moral values. Public opinion and legal philosophy often shape the extent to which morals influence the law. In practice, moral considerations can play a role in legal decision-making, especially in cases involving ethical or contentious issues.
Differentiate between social customs and law:
Nature: Social customs are informal norms or behaviors accepted within a society, while law consists of formal rules and regulations enforced by government authorities.
Enforcement: Social customs rely on peer pressure and societal expectations for compliance, whereas law is enforced through legal mechanisms, such as police, courts, and penalties.
Consequences: Violating social customs typically results in social disapproval, while breaking the law can lead to legal consequences, including fines, imprisonment, or other penalties.
Primary sources of law in the United States:
Constitution: The U.S. Constitution is the supreme law of the land and the foundation for all other legal sources. It outlines the structure of the federal government and protects fundamental rights.
Statutes: Statutes, or laws, are enacted by legislatures at both the federal and state levels. Federal statutes are passed by Congress, while state statutes are created by state legislatures.
Common Law: Common law is based on judicial decisions and precedents established in court cases. It is particularly significant in areas not covered by statutes or regulations.
Regulations: Administrative agencies create regulations to implement and enforce statutes. Federal agencies, such as the FDA or EPA, issue regulations that have the force of law within their respective domains.
Difference between public law and private law:
Public Law: Public law pertains to the relationship between government entities and individuals or other governments. It includes constitutional law, administrative law, and criminal law, among others.
Private Law: Private law deals with the relationships between individuals, organizations, or entities. It includes areas like contract law, property law, and tort law. Disputes in private law are generally resolved between parties, not involving government prosecution.
Relationship between state and federal systems of government:
Federalism: The United States operates under a federal system of government where power is divided between a central (federal) government and individual state governments. Each level of government has specific powers and responsibilities defined by the U.S. Constitution.
Concurrent and Exclusive Powers: Certain powers, like national defense, are exclusive to the federal government, while others, such as education and criminal law, may be concurrent, with both federal and state governments having authority.
Supremacy Clause: The Supremacy Clause in the U.S. Constitution establishes federal law as supreme when it conflicts with state law. Federal law prevails in such cases.
Checks and Balances: The federal and state governments provide checks and balances on each other, helping maintain the distribution of power and prevent abuse of authority. This system supports local autonomy while ensuring national unity.
Understanding these distinctions and relationships is fundamental for comprehending the U.S. legal system and its complex interplay between federal and state governments, as well as the various sources and categories of law.
Where does the law come from, and how do individuals distinguish right from wrong? The foundation for understanding right and wrong is rooted in a blend of societal norms, cultural influences, and legal standards:
Upbringing and Caretakers: Caretakers and family members play a vital role in instilling a sense of right and wrong during one's formative years. They impart moral values, ethics, and social behavior expectations.
Education and Community Elders: Educational institutions and community elders, such as teachers and mentors, contribute to shaping individuals' moral compass. They provide guidance on appropriate conduct and reinforce values.
Employers and Organizational Culture: Employers often communicate their expectations regarding employee behavior through codes of ethics, employee handbooks, and the broader organizational culture. These standards influence how employees should act within the workplace.
It's important to note that not all behaviors deemed "wrong" align with legal violations; some represent social norms and cultural conventions. For instance, inquiring about a stranger's income, while not illegal, is generally considered impolite and breaches social norms. Conversely, legal violations transgress laws established by recognized authorities vested with the power to create and enforce laws within society.
The distinguishing factor is the source of authority that legitimizes these norms and standards. Social norms are shaped by societal conventions and cultural expectations, while legal norms are based on recognized legal authorities with the capacity to create and enforce laws. Consequently, two distinct types of rules coexist in our society—social norms and laws—each governing behavior in different ways.
A Moral Dilemma: The Haiti Earthquake and Royal Caribbean
In January 2010, a catastrophic earthquake struck Haiti, one of the world's poorest countries, resulting in a devastating loss of life. Amid the chaos and suffering, ethical questions arose when Royal Caribbean, a cruise line operator, faced a significant moral dilemma.
The Ethical Challenge:
Royal Caribbean had a scheduled stop at a private beach in Haiti, a destination that had received substantial investments to provide an enjoyable experience for cruise ship vacationers. While rescue efforts were underway in the aftermath of the earthquake, thousands of survivors were struggling to find food and shelter, with some resorting to looting and violence in desperation.
The Cruise Dilemma:
If you were one of the passengers scheduled to embark on a Royal Caribbean cruise during the week following the earthquake, you would likely confront a profound ethical dilemma:
The Decision to Go: Should you choose to proceed with your vacation, despite the devastation occurring nearby? Your decision might be influenced by your perception of Royal Caribbean's responsibilities and your personal desire for the vacation.
Reactions from Friends and Family: Your choice to go on the cruise would undoubtedly evoke varied reactions from friends and family. Some might understand the allure of the pre-planned trip, while others could question the ethics of enjoying a luxurious cruise while a humanitarian crisis unfolded nearby.
Refund Consideration: The cruise operator, not legally obligated to issue refunds for nonrefundable tickets, faces an ethical question as well. Should Royal Caribbean voluntarily offer refunds to passengers who choose to cancel their vacations due to the tragic circumstances?
These questions underscore the complexity of balancing individual desires and the broader moral responsibility of organizations like Royal Caribbean. Ultimately, individuals would grapple with their personal convictions, the perception of the situation, and the ethics of their choices in this emotionally charged scenario. The cruise line would also be scrutinized for its ethical stance in a time of crisis, affecting its reputation and relationship with its customers.
Distinguishing Social Customs from Law:
Social customs and legal norms represent distinct aspects of human behavior and society, each carrying its own consequences:
Social Customs: Violating social customs can result in non-legal consequences, such as embarrassment or social ostracism. When individuals choose to disregard social customs, they may face negative social or professional outcomes. Those who consistently breach these norms may be labeled as boorish, and others may seek to avoid them due to their discomfort. Importantly, there are no legal penalties associated with breaking social customs.
Legal Norms (Law): Contrarily, violating the law incurs legal penalties, which can vary based on the nature of the violation. These penalties may include civil liability, fines, or even the loss of personal liberty. When it comes to the law, individuals are compelled to obey under the threat of these penalties, creating a binding and enforceable obligation.
Classification of Law into Public and Private Law:
Law can be broadly categorized into two main branches, public law and private law:
Public Law: Public law is applicable to everyone within a specific jurisdiction. It is formulated by a legitimate authority vested with the power to create laws and is binding on all members of society. Even those responsible for making and upholding the law, such as legislators and government officials, are subject to these legal standards. When a breach of public law occurs, penalties are imposed on the violator, and these penalties are typically administered by recognized legal authorities, like the judiciary. Public participation plays a crucial role in the creation and interpretation of public law. For example, individuals may exercise their voting rights to elect legislators who create laws, and they have the opportunity to seek redress through the judicial system when legal disputes arise.
The distinction between social customs and legal norms, as well as the division between public and private law, is essential in understanding the multifaceted nature of human conduct and the legal framework that governs it. While violations of social customs primarily lead to social consequences, violations of the law result in legal repercussions that are enforced by the legal system.
Distinguishing Private Law, Procedural Law, and Substantive Law:
Private Law: Private law pertains to legal principles that are binding on specific parties involved in a particular agreement. For example, when parties enter into a contract, they establish a private law relationship. The terms and obligations within the contract exclusively apply to those parties and not to third parties. If a dispute arises within the contractual relationship, the parties have access to dispute-resolution mechanisms, recognizing the judiciary as a legitimate authority for settling their issues. However, the outcomes and remedies decided upon in such cases are confined to the involved parties and do not extend to others.
Procedural Law: Procedural law encompasses the legal rules that dictate the correct process or methods that must be followed within the legal system. It outlines the mandatory steps and requirements for various legal procedures. For instance, in the United States, the Fourth Amendment generally necessitates that law enforcement obtain a warrant before conducting searches in private homes. Failure to adhere to the prescribed process or engaging in unlawful practices during the warrant application constitutes a violation of procedural law.
Substantive Law: Substantive law pertains to the actual content and substance of legal rights and duties. It encompasses the fundamental principles and regulations governing legal matters, including statutory laws, constitutional provisions, and common law precedents. Substantive law embodies the essence of legal rights, responsibilities, and liabilities and is derived from recognized sources of law, such as statutes, the Constitution, and common law doctrines.
Sources of Law in the United States:
In the United States, the legal framework draws from various primary sources:
Constitution: The U.S. Constitution and state constitutions serve as foundational sources of law, establishing the fundamental structure of government and safeguarding individual rights.
Statutory Law: Statutory law originates from legislative bodies at both the federal and state levels, with Congress, state legislatures, and local legislative entities creating laws.
Common Law: Common law is built upon judicial decisions and legal precedents established in court cases. It is particularly influential in areas not covered by statutes or regulations.
Administrative Rules and Regulations: Administrative agencies issue rules and regulations to implement and enforce statutes. These regulations have the force of law within their respective domains.
Executive Orders and Treaties: Executive orders, issued by the President, and treaties negotiated and ratified by the Senate also hold significant legal authority.
These primary sources of law collectively reflect the will of the people, as representatives are elected to create laws that align with the public's interests and values. Consequently, U.S. law serves as both a reflection of the will of the populace and a manifestation of public policy.
Secondary Sources of Law and Their Transition to Primary Law:
Secondary sources of law serve as valuable reference materials, shaping legal discourse and influencing decision-makers, despite their origin from legal scholars rather than recognized law-creating authorities. These sources encompass:
Restatements of the Law: Restatements provide organized summaries of legal principles, aiding in the comprehension and application of legal concepts. Though not primary law, they hold significance in legal interpretation.
Law Review and Journal Articles: Legal scholars contribute articles in law reviews and journals, offering insights, analyses, and interpretations of various legal topics. These articles contribute to the discourse surrounding legal issues and can be influential in the legal community.
Uniform Codes: Uniform codes, such as the Uniform Commercial Code (UCC), are model codes developed to harmonize and standardize legal rules across jurisdictions. While originating as secondary law, they serve as templates for states to consider and often adopt as primary law.
Treatises: Legal treatises provide comprehensive examinations of specific areas of law, offering in-depth analyses and guidance for legal practitioners, judges, and scholars. They do not possess the status of primary law but are valuable resources for understanding legal nuances.
The impact of these secondary sources is significant, as they are consulted and cited by individuals involved in shaping, interpreting, and applying the law. Members of the judiciary, for instance, may refer to restatements or law review articles when deliberating cases, influencing their decisions.
A notable transformation from secondary to primary law occurs when a legitimate lawmaking authority formally adopts a body of secondary law. In this transition, the secondary source becomes primary law, with the authority to bind and regulate conduct. For example, a state legislature's adoption of the Uniform Commercial Code (UCC) converts this model code from a secondary source into a primary source of law within that state, effectively designating it as a statute.
The U.S. Constitution: Framing the Federal Government and the Bill of Rights
The U.S. Constitution serves as the foundational framework for the federal government of the United States. It outlines various critical aspects, including the establishment of three distinct branches—the legislative, executive, and judicial branches. Within this constitutional document, organizational and procedural prerequisites are detailed, demarcating the scope of authority for each branch while incorporating mechanisms for checks and balances among them.
Article II, Section 2 of the U.S. Constitution, as illustrated in Note 1.26 "Hyperlink: The U.S. Constitution," designates the president as the commander in chief of the armed forces. However, the power to declare war is vested in Congress, underscoring the separation of authority between the executive and legislative branches.
The first ten amendments to the U.S. Constitution collectively constitute the Bill of Rights. While some of the Founding Fathers debated the necessity of a Bill of Rights, as they believed that the federal government's authority was explicitly confined, the Bill of Rights was ultimately included to safeguard specific individual civil rights and liberties. Notably, any powers not expressly granted to the federal government by the U.S. Constitution are retained by the states, thereby allocating regulatory authority to the states in areas where the federal government lacks explicit jurisdiction.
In the modern context, business entities, including corporations, are recognized as legal persons under the law. Consequently, they benefit from many of the rights and liberties enshrined in the Bill of Rights, analogous to natural human beings. This extension of legal rights to business entities forms a notable aspect of contemporary legal and constitutional interpretation.
State Constitutions and Federalism:
Every state in the United States maintains its own constitution, which fulfills a role analogous to that of the U.S. Constitution but at the state level. These state constitutions serve several crucial functions, mirroring the U.S. Constitution's role in federal governance. Primarily, state constitutions define the boundaries of government authority, safeguard fundamental rights, and establish the structure and responsibilities of state government branches.
Federalism: A Dual System of Government
The United States embraces a system of government known as federalism, wherein both the federal government and individual state governments coexist within a framework of shared powers. Notably, state laws must align with federal laws, including the U.S. Constitution, as the U.S. Constitution holds the supreme legal authority across the nation.
Statutory Law: Legislation at Various Levels
Statutory law represents legislation enacted by a legislative body. At the federal level, the legislative body is Congress, while states possess their own legislative bodies. These state legislative branches often consist of two chambers, following a bicameral structure, mirroring the federal system. The nomenclature of state legislatures varies by location, such as the General Assembly in Indiana, the Legislative Assembly in North Dakota, and the Legislature in New York. Despite the differences in names, their core purpose remains the same: they serve as the legislative arms of state governments.
The Composition of Congress:
The composition of Congress at the federal level involves two key chambers: the Senate and the House of Representatives. The deliberations and debates of the Founding Fathers in drafting the Constitution led to the creation of a deliberative legislative body that may not always rapidly respond to the majority's will. The allocation of House seats is determined by population figures derived from the decennial census, sometimes resulting in disproportionate representation for smaller states in the Senate. Notably, states like Alaska and Delaware have only one House representative each, but they are each represented by two senators.
Senators serve six-year terms, while members of the House of Representatives serve two-year terms. Importantly, neither senators nor House members face term limits, which has both advantages and drawbacks. The absence of term limits allows the perpetuation of institutional knowledge and wisdom but can lead to elected officials making calculated voting decisions to ensure reelection. Implementing term limits would address the issue of vote pandering but might result in a Congress populated by a continuous influx of inexperienced lawmakers.
As demonstrated in "How a Bill Becomes a Law," the introduction of a bill in Congress can occur through either the Senate or the House of Representatives. Within both chambers, various committees oversee different areas subject to legislative action. Once a bill is introduced, it is referred to the appropriate committee in the originating house of Congress. Should the committee decide to advance the bill, it possesses the authority to make amendments based on its discretion before sending the bill for a vote in the house of origin (either the Senate or the House of Representatives). If the bill secures approval in this initial house, it is subsequently transmitted to the other house for a similar procedure. Upon approval in the second house, the bill is submitted to a joint committee, consisting of members from both the House of Representatives and the Senate, for final refinements. The bill is then returned to Congress for a comprehensive vote. Following a successful vote in Congress, the bill is forwarded to the president. Should the president endorse the bill, it becomes law.
Nevertheless, the president retains the option to veto a bill, which represents an executive "check" on the legislative body. However, if the president exercises a veto, Congress can overcome it by achieving a supermajority vote, representing a legislative "check" on the executive branch. These checks and balances are integral components of the U.S. Constitution.
It's important to note that Congress operates within the boundaries of its enumerated powers. Contrary to a common misconception, Congress does not possess unrestricted authority. A close examination of Article I, Section 8, which can be accessed through "The U.S. Constitution," reveals the specific powers granted to Congress by the U.S. Constitution. Additionally, any powers not explicitly delegated to the federal government are retained by the individual states. Consequently, if Congress were to enact legislation that encroaches upon an area reserved for state regulation, it would have exceeded its constitutionally defined powers. In such cases, if challenged, the law would be declared unconstitutional.
Practically, this results in significant variations in state laws across the United States. For example, Oregon permits terminally ill patients to legally choose physician-assisted suicide under the state's Death with Dignity Act, while such an act remains illegal in many other states.
Common law, on the other hand, is a legal system characterized by the development of judge-made law. Common law is a prevalent feature in countries that were previously British colonies, where it originated. In contrast, civil law systems, observed in continental Europe, grant the authority to create law exclusively to the legislature, without allowing judges to establish laws through interpretation.
In a common-law system, when appellate courts hear cases and render decisions, they establish and mold rules of law. Once a legal issue has been settled within a jurisdiction, subsequent cases presenting the same legal issue are likely to follow the same established rule of law from earlier cases dealing with a similar legal matter. This principle is referred to as stare decisis, meaning "let the decision stand." It forms the basis for creating legal precedents, which guide our understanding of the legal implications of our actions and help predict the behavior of others. While precedents can evolve or be overturned, such instances are relatively infrequent, preserving the stability and predictability of the legal system.
Legal reasoning serves as a fundamental tool for attorneys advocating for specific case outcomes and for judges when rendering their decisions. At its core, the process of legal reasoning begins with the identification of the legal question or issue in dispute. Subsequently, the applicable rule of law is determined, often drawn from prior legal precedents. The facts of the case are then examined in light of the identified rule of law to arrive at a justifiable conclusion. This method of legal reasoning adheres to the IRAC method, an acronym signifying Issue, Rule, Analysis, and Conclusion.
Common law is a crucial source of law, especially in those areas reserved for state regulation. States possess the authority to exercise their police powers to regulate the safety, health, and welfare of their residents. As a result, laws governing these aspects can extend to various domains, including property law (such as zoning regulations), so-called vice laws (pertaining to restrictions on vice-related activities in specific areas or during particular times), and domestic relations (covering laws related to marriage and adoption). It's essential to recognize that precedents can differ between different jurisdictions, as legal decisions made in one jurisdiction are not binding in others.
The majority of administrative agencies are established by legislative bodies. In the federal context, Congress creates these agencies, while at the state level, they are formed through state legislative bodies. These agencies can be viewed as a delegation of congressional authority to experts in particular fields, enabling them to engage in limited lawmaking, adjudication, and investigative activities within their designated areas of expertise. Laws promulgated by administrative agencies are referred to as rules or regulations. These agencies are brought into existence by enabling legislation, which delineates their jurisdictional parameters, rule-making procedures, and other details concerning their scopes of authority.
An action that may violate social norms but not break any laws could be wearing unusual, unconventional, or provocative clothing in a conservative or formal setting. While it might be seen as unconventional or impolite, it is generally not illegal.
Conversely, an example of a violation of law that may not necessarily infringe upon social norms is a white-collar crime, such as insider trading. Such activities, though illegal, may not always be widely condemned or disapproved of in social settings, especially among certain groups or individuals.
Three specific powers of Congress are:
The power to tax and spend: Congress has the authority to impose taxes and allocate government spending
The power to regulate commerce: Congress can regulate interstate and foreign trade, which includes the ability to set trade policies and tariffs.
The power to make laws: Congress can create and pass legislation on a wide range of issues, such as civil rights, environmental regulations, and healthcare.
Three specific powers of the executive branch are:
The power to execute and enforce laws: The President is responsible for enforcing federal laws and policies.
The power to make appointments: The President can nominate federal judges, members of the Cabinet, and other key officials, subject to Senate approval.
The power to make foreign policy: The President is the chief diplomat and is responsible for negotiating international agreements and treaties.
The powers of the judicial branch are relatively well defined, but there is some flexibility to interpret and apply the law, particularly in situations where legal precedents are lacking or the text of a statute is open to interpretation. Judicial decisions are subject to checks and balances, including appeals, to ensure that the judiciary does not overstep its authority.
Areas of law reserved to the states to regulate include many aspects related to property law (e.g., zoning regulations), family law (e.g., marriage and divorce), education, criminal law, and tort law, among others. This reservation is primarily outlined in the Tenth Amendment to the U.S. Constitution, which states that powers not delegated to the federal government are reserved for the states or the people.
Identifying a specific bill in the House of Representatives or the U.S. Senate would require real-time information as the status of bills can change frequently. You can track bills by visiting the official websites of the House of Representatives or the Senate or by using various legislative tracking platforms. Each bill typically goes through various stages, including introduction, committee review, debate, voting, and reconciliation between the House and Senate versions. To become law, a bill must pass both houses of Congress and be signed by the President.
Three federal administrative agencies that can significantly affect individuals and their families include:
The Social Security Administration (SSA): The SSA administers programs such as Social Security retirement, disability, and survivor benefits, which provide crucial financial support to eligible individuals and their families.
The Environmental Protection Agency (EPA): The EPA oversees environmental regulations and policies that can directly impact air and water quality, affecting the health and well-being of families and communities.
The Department of Education: This agency influences educational policies and funding at the federal level, impacting students, parents, and educators nationwide.
A rule of law system is a legal framework in which laws are clear, public, applied consistently, and protect fundamental rights. It means that everyone, including government officials, is subject to the law and held accountable if they violate it. The rule of law also ensures that disputes are resolved through a fair and impartial legal process. This concept is fundamental in ensuring a just and orderly society.
The U.S. rule of law system is based on the principles of the United States Constitution and its amendments. Here are key aspects of the U.S. rule of law system:
Constitution: The U.S. Constitution is the supreme law of the land. It establishes the framework for the federal government, allocates powers between branches, and outlines fundamental rights.
Separation of Powers: The U.S. government is divided into three branches—the legislative, executive, and judicial branches. Each branch has distinct powers and responsibilities, ensuring a system of checks and balances to prevent any single branch from becoming too powerful.
Bill of Rights: The first ten amendments to the Constitution, known as the Bill of Rights, enumerate specific protections for individual rights, such as freedom of speech, religion, and due process.
Legal Precedent: The U.S. follows a common law tradition, where court decisions serve as legal precedents. Courts, including the Supreme Court, interpret the Constitution and create rules that guide future cases.
Judicial Review: The power of judicial review, established by the case of Marbury v. Madison (1803), allows courts to determine the constitutionality of laws and government actions.
Due Process: The Constitution guarantees due process of law, meaning that individuals have the right to a fair and impartial legal process when facing accusations or legal issues.
Equal Protection: The Constitution's Equal Protection Clause ensures that laws must be applied equally to all citizens and that discrimination based on characteristics like race, gender, or religion is prohibited.
Federalism: The U.S. follows a system of federalism, where powers are shared between the federal government and individual states. State laws complement federal laws and govern specific areas of life.
Transparency and Accountability: The U.S. legal system is transparent, with laws and court decisions publicly accessible. Public officials, including the President, can be held accountable for violating the law.
Consistency and Fairness: The rule of law system strives to provide consistent application of the law and ensure that individuals have equal access to justice.
The U.S. rule of law system is integral to the nation's democratic governance and the protection of individual rights and freedoms. It provides a framework for resolving disputes, protecting civil liberties, and holding the government accountable to the people it serves.
When you encounter the term "rule of law," it might initially seem abstract, but it holds a crucial place in legal and governance contexts. The rule of law represents a structured framework of laws that bind both the government and the people. It serves to provide predictability and restrict government actions.
A robust rule of law system serves several vital functions:
Legitimizing the Law: It lends legitimacy to the entire legal system. By creating clear and universally applicable rules of behavior, it establishes legal precedents, effectively eliminating the excuse of ignorance of the law. This ensures that individuals are held to the same legal standards, promoting fairness and equal justice under the law.
Consistency and Equal Standards: In a true rule of law system, all individuals are subject to the same standards. Unlike historical legal systems where different classes of people had distinct rights and responsibilities, a well-implemented rule of law ensures that individuals within the same legal jurisdiction are held to equal standards. This fosters a sense of fairness and justice for all members of society.
Historical Roots: The U.S. rule of law system didn't materialize out of thin air. It draws inspiration from a rich historical lineage of rule of law systems that precede it. Similarities can be traced back to ancient civilizations, such as Babylon, and these systems share key elements like determining the legitimate authority to govern, recognizing the sources of law, structuring government, specifying legal rights and duties, offering procedures for resolving disputes, and establishing consequences for legal violations.
In essence, the rule of law serves as a cornerstone in maintaining a just, accountable, and orderly society, where laws are clear, consistently applied, and where both government actions and individual behavior are guided by well-established legal principles. This historical continuity and emphasis on fairness and consistency are at the heart of the rule of law system, forming the basis of democratic governance and civil liberties.
Consider the consequences if we lacked a system to address these fundamental questions. Imagine a world where the rightful authority to govern was uncertain, where legitimate sources of law were in dispute, and where foundational principles were not established through a rule of law system. Chaos and discord would likely prevail. Factions could vie for control, competing to assert their authority. Various sources of law, ranging from religious texts to laws formulated by individuals, could vie for dominance, leading to confusion and inconsistency. Moreover, diverse methods of dispute resolution might emerge, including vigilante justice, procedural systems, and more, creating unpredictability and instability in society. Thus, we should not underestimate the significance of the American rule of law system; it provides predictability and stability to our lives.
Rule of law systems serve critical functions, including the establishment of authoritative structures, behavioral expectations, and frameworks for resolving disputes. The primary aim is to govern conflicts and achieve peace among the governed. This commitment to peace is explicit in the U.S. Constitution's preamble, which emphasizes the objective "to... insure domestic Tranquility." A similar principle exists in the English Bill of Rights of 1689, though the wording differs.
Many rule of law systems endorse a hierarchical authority structure as a cornerstone for achieving peace. Acknowledging the right to govern is key to achieving legitimacy. For instance, in historical documents like the Code of Hammurabi and the Magna Carta, these rights derived from religious authority. In more contemporary systems like the U.S. Constitution and the English Bill of Rights of 1689, authority is derived from the people, underlining their power. This commitment to authority provides a foundation for a structured society, upholding principles that promote harmony and justice.
Distinguishing between power and authority is crucial. Power is the capability to compel someone to act in a predictable manner. In contrast, authority derives its strength from legitimacy. Consider a scenario in which your friend claims that his mother has granted him the right to govern others. Would you readily accept this claim? It's unlikely, as you probably wouldn't recognize your friend's mother as a legitimate authority capable of bestowing governing rights on him or anyone else. Now, imagine the governor of your state – you likely recognize their authority to govern, as it stems from the people, who, through representative government, have bestowed authority upon the governor.
The rule of law in the federal government of the United States is multifaceted, encompassing various sources of law. These sources include constitutional law, statutory law, regulations established by administrative agencies, federal common law, and treaties. Furthermore, the United States operates within a federal system of governance, allowing multiple rule of law systems to coexist. The two primary systems are the federal government and state governments.
Rule of law systems also address organizational structures within the government, determining who has the right to govern. For instance, the Code of Hammurabi designated Hammurabi as the ruler, while the English Bill of Rights of 1689 required representative bodies. The U.S. Constitution organized the U.S. government into legislative, executive, and judicial branches. These structures establish order and offer opportunities for the governed to engage in the government, thereby creating expectations for the governed.
Notably, even though the Founding Fathers drew inspiration from prior rule of law systems when crafting the U.S. Constitution, they couldn't resolve every challenge related to communal living. Today, one such unresolved challenge pertains to the balance between personal liberty and responsibilities to the state. While individual rights and personal liberties are well-established, some argue that our responsibilities to the state should be more substantial, including obligations like the legal duty to vote, serve in public office, in the military, or maintain public lands. Unresolved challenges underscore that rule of law systems are not perfect but nevertheless establish conduct expectations, enabling conflict management and peace attainment.
he U.S. Constitution serves as the cornerstone of the U.S. federal rule of law system, emphasizing the paramountcy of law. The significance of the phrase "We the people" in the preamble cannot be overstated, as it bestows authority upon both the people and the states. It's important to note that, unlike the Magna Carta and the English Bill of Rights of 1689, the U.S. Constitution does not primarily focus on individual rights. Individual rights take center stage in the Bill of Rights, which were amendments added after the Constitution's initial drafting.
The U.S. Constitution establishes the supremacy of law through its structural design and procedural mechanisms. The Founding Fathers were acutely aware of the need to empower the government to fulfill its functions without risking tyranny. To secure the supremacy of law, they integrated specific processes into the system. This approach reflects the principle that our system is "a government of laws and not of men," as eloquently articulated by John Adams in the Massachusetts Constitution. Thomas Paine expressed a similar sentiment in Common Sense, emphasizing that "the law is king."
Some social problems that the rule of law may not fully address or inadequately address can include issues like income inequality, environmental degradation, and access to quality healthcare.
The Ten Commandments are not a rule of law system in the traditional sense. They are moral and ethical guidelines rooted in religious teachings. Their legal relevance varies from place to place and over time. In the United States, laws are primarily based on secular principles, and not all of the Ten Commandments are explicitly illegal in every state. For example, while "Thou shalt not murder" aligns with laws against homicide, other commandments such as "Remember the Sabbath day" have no legal bearing.
Without a rule of law, societies would face a multitude of problems, including chaos, disputes without resolution mechanisms, and the potential for authoritarian or arbitrary rule. The rule of law provides structure, order, and predictability to a society.
The rule of law significantly affects businesses by providing a legal framework in which they can operate. It ensures the enforcement of contracts, protects property rights, and regulates commercial activities. The rule of law fosters an environment of stability and consistency, which is crucial for economic growth and business development. It allows businesses to function with confidence that their rights and obligations will be upheld through legal means.
The rule of law is essential to businesses for several reasons:
Predictability and Consistency: The rule of law ensures that laws and regulations are consistently applied and enforced. This predictability allows businesses to plan, make investments, and operate with confidence that their legal rights and obligations will be upheld.
Contract Enforcement: A fundamental aspect of business involves entering into contracts. The rule of law ensures that contracts are legally binding and that parties can seek remedies in case of breaches. This legal framework is crucial for business transactions.
Protection of Property Rights: Property rights are vital for businesses, as they provide security for assets such as land, buildings, intellectual property, and other resources. The rule of law safeguards these property rights and ensures that businesses can use, transfer, and protect their assets.
Resolution of Disputes: Conflicts and disputes are common in business. The rule of law provides a structured and impartial process for resolving disputes, such as through the courts. This process is crucial for ensuring fair and equitable outcomes.
Regulation and Compliance: Businesses are subject to various regulations covering areas such as taxation, environmental protection, labor relations, and product safety. The rule of law establishes the framework for creating and enforcing these regulations, ensuring that businesses operate within legal boundaries.
Consumer and Investor Confidence: The rule of law helps build confidence among consumers and investors. They know that businesses are held accountable for their actions, which can lead to greater trust in the marketplace.
Protection of Intellectual Property: Intellectual property rights, including patents, trademarks, and copyrights, are essential for businesses, particularly those in innovative industries. The rule of law ensures that these rights are protected, encouraging innovation and creativity.
Competition and Antitrust Laws: The rule of law supports competition by enforcing antitrust laws. These laws prevent anti-competitive practices, such as monopolies and price-fixing, which can harm both businesses and consumers.
The rule of law limits government power in several ways:
Checks and Balances: A well-structured rule of law system includes checks and balances among the branches of government. This prevents any single branch from becoming too powerful and infringing on individual rights or interfering excessively in business affairs.
Constitutional Limits: Constitutions often define the scope of government authority. They specify the powers and limitations of the government, including its ability to regulate and intervene in economic and business activities.
Protection of Individual Rights: The rule of law protects individual rights from government overreach. This includes freedom of speech, freedom from unlawful searches and seizures, and protection against arbitrary government actions that could impact businesses.
Transparency and Accountability: Government actions must adhere to transparent and accountable processes. This ensures that government officials cannot abuse their authority to favor or harm specific businesses or individuals.
Judicial Review: The judiciary, as a part of the rule of law, has the power of judicial review. This means courts can assess the constitutionality of government actions and strike down those that exceed legal boundaries.
The rule of law protects people from harmful business practices in the following ways:
Consumer Protection Laws: Consumer protection laws, under the rule of law, establish standards for business practices that prevent fraud, deception, and unsafe products. These laws safeguard consumers from harm.
Labor Laws: Labor laws protect employees from exploitative and harmful practices by employers. They establish minimum wage standards, working conditions, and protection against discrimination.
Environmental Regulations: Environmental laws regulate business activities to prevent harm to the environment, public health, and safety. The rule of law ensures that businesses comply with these regulations and face penalties for violations.
Antitrust and Competition Laws: The rule of law enforces antitrust and competition laws to prevent monopolistic practices and anti-competitive behavior that could harm consumers and other businesses.
Product Liability: The rule of law allows individuals to seek legal remedies when they are harmed by defective or dangerous products, holding businesses accountable for product safety.
Overall, the rule of law is a fundamental pillar for businesses and individuals alike, as it establishes the legal framework for economic activities, protects rights, and ensures accountability and fairness in business practices.
As you've likely discerned, the rule of law is of paramount importance to business. Picture trying to engage in business without the ability to reasonably predict the behavior of others. Would you be willing to conduct business if you had no legal recourse to safeguard your property interests? Moreover, in the event of a dispute, lacking a rule of law system, there would be no established means of resolution. Without the rule of law, the business landscape would be plunged into chaos. This section elucidates several overarching examples that underscore why the rule of law is indispensable to business.
Before we delve into these examples, consider this analogy: imagine not knowing how to play chess but attempting to play it nonetheless. You'd quickly become frustrated, baffled by the movements of your opponent's pieces. You wouldn't grasp the logic behind these movements, nor would you know the precise capabilities and limitations of each piece. Furthermore, you'd be uncertain about how to penalize your opponent for any incorrect moves made to gain an advantage or seize your pieces. This scenario closely resembles doing business without a firm understanding of the rules governing the game.
The rule of law establishes these essential rules that individuals and businesses must adhere to in order to avert penalties. It not only provides individuals with clarity regarding what is expected of them in their personal lives but also delineates rules for businesses, ensuring they comprehend the requirements governing their transactions and interactions. Moreover, the rule of law serves as a restraint on government and other entities to prevent infringement upon property rights. In case disputes arise, the rule of law offers a peaceful and predictable mechanism for resolving such conflicts.
The rule of law imparts guidance and structure to every facet of business. For instance, it furnishes a pathway to lodge a complaint against another party before an impartial decision-maker, allowing for the resolution of disputes. Thanks to our rule of law system, we know that we can initiate litigation by filing a complaint in the appropriate court. Alternatively, if we wish to avoid litigation, we can explore alternative dispute resolution methods. Our knowledge that we can undertake these actions is derived from the rule of law system, assuring us of a reasonable expectation of some form of resolution.
Furthermore, in the United States, the rule of law institutes a complex system of federalism, coexisting state and federal laws. This permits individuals and businesses to ascertain which system of governance applies to them and which jurisdiction they fall under. Imagine, for instance, that you operate a retail firearms business. You would be subject to both state and federal laws, necessitating a federal permit from the Bureau of Alcohol, Tobacco, Firearms, and Explosives for your firearms sales. You'd also be prohibited from participating in illicit arms trading. On the state level, you'd need to adhere to a series of requirements, such as verifying the validity of firearm permits for purchasers, checking identification, enforcing waiting periods, and declining sales to individuals not permitted to possess firearms according to your state's laws. Without a rule of law system, your business operations would be rife with uncertainty, exposing you to arbitrary enforcement of unstated or retroactive laws that could significantly impact your business.
The rule of law also extends its jurisdiction to contracts, governing agreements made between individuals and merchants. Under the common law system, contracts must meet certain criteria to be deemed enforceable. The Uniform Commercial Code (UCC), on the other hand, bestows merchants with a distinct set of rules, designed to accommodate and adjust to varying contractual terms, catering to the dynamic needs of business transactions. In cases where conflicts arise between the terms proposed and accepted by merchants, the UCC introduces "gap fillers" that can harmoniously complete the contract's terms without necessitating an entire reconfiguration or formal dispute resolution. This adaptability facilitates and simplifies business interactions. Furthermore, businesses depend on the rule of law to hold contractors accountable when they fail to fulfill their obligations.
Moreover, the rule of law system is the linchpin of clarity in the relationships between employers and employees. Employers are well aware of their obligations, as are the employees in respect to their responsibilities towards their employers. In the same vein, individuals in business partnerships, corporate board members, and limited liability company members all have well-defined expectations concerning their roles within the organization and in their interactions with others. In the event that someone strays beyond what is legally permissible, there is a recourse for legal action.
Additionally, the rule of law provides a safety net for property protection. Just envision a world where there is no safeguard for intangible assets like intellectual property, such as trade secrets, trademarks, or copyrights. Protecting such property would become an arduous task without a framework in place. Without a reasonable expectation of protection and reward for their creations, individuals would be disincentivized to generate or share new intellectual property. The rule of law permits us to shield tangible property from infringement without the need for extraordinary measures. In the absence of a rule of law system that grants and preserves our legal ownership rights to real or personal property, the only viable option would be to hire costly private security forces to defend our property whenever we cannot be physically present to safeguard it ourselves.
Furthermore, businesses place their trust in the rule of law to oversee their relationships as debtors and creditors. In cases where financial matters do not unfold as projected, our legal framework empowers businesses to seek legal protection from creditors through bankruptcy law. This affords businesses the opportunity to safeguard their assets from creditor repossession or foreclosure while they work on regaining their financial stability.
The rule of law also functions as a shield, protecting individuals from the potential malpractices of businesses. For instance, the U.S. Congress has enacted antitrust legislation to deter specific anticompetitive practices, such as collusion and price fixing. Additionally, businesses are forbidden from engaging in deceptive advertising, and they are held accountable when they manufacture or sell faulty products that lead to injuries.
The rule of law further extends its protection to businesses in their dealings with the government. Given that everyone is subject to the rule of law, this means that the government itself cannot overstep its boundaries when it comes to regulating or investigating businesses. Even the government must adhere to established rules. Imagine a scenario where the government could act without limitations or jurisdictional constraints. In such a climate, businesses might be at risk of arbitrary government shutdowns, excessive taxes, or demands for bribes to obtain business permits. Our rule of law system acts as a safeguard against such potential abuses.
Without a rule of law system, individuals would be compelled to seek personal retribution for wrongdoings against them. They would have to take it upon themselves to physically protect their property. Such a situation would disrupt the fabric of society, ushering in vigilante justice and physical strength as the primary methods of conflict resolution.
Engaging in a game without knowing all the rules can lead to confusion and frustration, making it challenging to enjoy the game fully. Playing a game in such a situation often results in a lack of understanding of the game's objectives and mechanics.
Attempting to speak a language in which you are not fluent can lead to misunderstandings and miscommunications. You may struggle to convey your thoughts accurately and may encounter difficulty understanding others, which can impede effective communication.
In a business context, not being certain about receiving compensation for your work would significantly diminish the incentive to work for your employer. Uncertainty about payment would lead to employee dissatisfaction, reduced productivity, and a potential lack of motivation.
Similarly, without a legal expectation that your creative work can be protected, the incentive to invent, create, or write would diminish. Without legal safeguards for intellectual property, individuals may hesitate to invest time and effort in creative endeavors, as there would be no assurance of reaping the rewards of their work.
If I were an entrepreneur, the type of business I would open might be a technology startup. To determine the required permits and the relevant government entities with jurisdiction over the business, I would consult legal experts or resources specific to my location, such as government websites, to gain a clear understanding of the regulatory landscape.
In a land without any rule of law system, business operations would be chaotic and unpredictable. Without established rules, businesses would face uncertainty in their transactions and contractual agreements. Property rights would be at constant risk, leading to the need for personal security forces to protect assets. Dispute resolution would rely on physical strength and vigilante justice rather than established legal procedures, causing social instability and potential violence. The absence of a rule of law system would deter investment, stifle economic growth, and lead to a breakdown in the social fabric of the society.
Law plays a crucial and multifaceted role in various business disciplines and the study of business. Its relevance can be observed in the following ways:
Legal Compliance: Business disciplines such as accounting, finance, and marketing must adhere to legal regulations and standards. For example, accounting practices must comply with financial reporting regulations (e.g., Generally Accepted Accounting Principles - GAAP) to ensure accurate and transparent financial statements.
Contract Law: Contract law is fundamental in business operations. Every business transaction involves contractual agreements, and understanding contract law is essential to create, interpret, and enforce these agreements.
Corporate Law: Corporate law governs the establishment, management, and dissolution of business entities. It defines the legal structures of businesses, such as sole proprietorships, partnerships, corporations, and limited liability companies, and determines their legal rights and responsibilities.
Employment Law: Employment law regulates the employer-employee relationship, addressing issues such as employment contracts, discrimination, workplace safety, wages, and termination. An understanding of employment law is essential for human resources and management.
Intellectual Property Law: In business disciplines related to innovation, creativity, and branding, intellectual property law is crucial. It protects inventions (patents), creative works (copyrights), brand names (trademarks), and trade secrets.
Antitrust and Competition Law: These laws promote fair competition and prevent anticompetitive practices in various business sectors. They are particularly relevant in marketing and economics to ensure market efficiency.
Taxation and Tax Law: Knowledge of tax laws is crucial for financial and tax professionals. Businesses must comply with tax regulations at the federal, state, and local levels, impacting financial planning and reporting.
Environmental Law: Companies operating in industries that impact the environment, such as manufacturing or energy, must adhere to environmental laws. Environmental compliance and sustainability have become increasingly significant.
Consumer Protection Laws: These laws safeguard consumers from harmful or deceptive business practices, impacting marketing, sales, and product development.
International Business Law: In an interconnected world, international business law regulates cross-border trade, international contracts, foreign investments, and global commerce. It affects international business management and trade relations.
The rule of law safeguards individuals and society from harmful business practices through the following mechanisms:
Consumer Protection: It establishes laws and regulations that protect consumers from fraudulent advertising, unsafe products, and unfair business practices. This ensures that businesses offer safe and reliable products and services to the public.
Antitrust Regulation: Laws that prevent monopolistic and anticompetitive behavior by businesses promote fair competition and protect consumers from price-fixing and other harmful practices.
Environmental Regulations: The rule of law imposes environmental standards and regulations on businesses to prevent pollution and harm to the environment, safeguarding public health and sustainability.
Contract Enforcement: By upholding the sanctity of contracts and dispute resolution mechanisms, the rule of law ensures that businesses honor their agreements with other businesses and consumers.
Intellectual Property Protection: Intellectual property laws protect innovations and creations, fostering innovation and competition while preventing the theft of intellectual assets.
Labor Laws: The rule of law enforces employment laws, protecting workers' rights, ensuring fair wages, and prohibiting discriminatory or exploitative labor practices.
In essence, the rule of law ensures a fair and regulated business environment, protecting both businesses and individuals from harmful practices and fostering economic growth and stability.
Foundational courses taken by undergraduate business students, such as accounting, finance, management, and marketing, are essential components of a business education. However, an understanding of the legal environment of business is equally vital and relevant. It underpins the functioning of these disciplines and plays a pivotal role in avoiding liability and mitigating risks. In the business world, ethical conduct alone is insufficient; comprehending the legal context in which business operates is imperative. This knowledge is not only valuable to you but also crucial for your employer, employees, and family, as it empowers you to navigate your business endeavors with a firm grasp of legal implications and reduces the likelihood of liability exposure. This section outlines specific examples of how law intersects with various business disciplines.
In recent years, accountants have faced heightened scrutiny, primarily due to the culpable actions of some within the profession in well-known business scandals, like Enron. The Enron scandal's aftermath prompted Congress to pass the Sarbanes-Oxley Act (SOX) of 2002, which introduced rigorous oversight requirements for accounting and auditing firms. These requirements aim to ensure professional competence, compliance with security laws, and adherence to generally accepted accounting principles.
While the Enron scandal and SOX represent notable instances of legal influence on accounting, law's impact on this discipline extends to regulatory aspects as well. For instance, the U.S. Securities and Exchange Commission (SEC) plays a significant role in shaping the accounting industry. The SEC's mission encompasses safeguarding investors' interests and maintaining fair market conditions. To achieve these goals, the SEC enforces accounting and auditing policies that enable investors to base their decisions on accurate information. Additionally, the SEC actively pursues charges related to accounting fraud and oversees private sector regulation of the accounting profession. Understanding the legal framework is indispensable for accountants, as compliance with these regulations and ethical behavior are pivotal to maintaining public trust and ensuring financial transparency.
This section aims to highlight the central role of law in each business discipline and emphasizes the necessity of a robust understanding of the legal environment for successful business operations while minimizing legal liability risks.
Finance is another field where the law plays a significant role. Professionals in the finance sector, like those in accounting, are subject to regulation by the SEC. The SEC's primary concern is ensuring that investors have access to accurate and reliable information when making investment decisions. Furthermore, the SEC actively enforces regulations against insider trading and investigates other forms of securities fraud, including Ponzi schemes. This regulatory framework is crucial to maintaining the integrity and transparency of financial markets.
In addition to regulatory oversight, various statutes are in place to safeguard consumers in financial transactions. The Truth in Lending Act (TILA) is one such example, which mandates that lenders provide accurate information about the costs associated with credit offers. TILA and its accompanying Regulation Z fall under the jurisdiction of federal banking agencies, emphasizing the legal protections available to consumers in financial dealings.
The impact of the law extends to professionals in management roles, where knowledge of employment law is paramount, especially for those working in human resources. Title VII of the Civil Rights Act serves as a fundamental legal framework, prohibiting discrimination based on protected characteristics in hiring and employment practices. Management personnel must also be cognizant of the potential liability that excessive demands on employees can create. As exemplified in the Faverty v. McDonald's case in Oregon, an employer's responsibility was upheld when an off-duty, off-premises worker, who had worked three shifts within a twenty-four-hour period, fell asleep while driving and caused injuries. The court determined that employers bear a duty to prevent actions that could foreseeably result in harm to others. This highlights the legal obligations and responsibilities placed on employers regarding their employees' well-being and safety.
In conclusion, legal knowledge is essential in the field of finance, employment, and management, as it underpins regulatory compliance, ethical conduct, and the protection of consumer interests. Professionals in these disciplines must navigate the legal landscape to ensure legal compliance and minimize legal liability risks.
Marketing professionals operate within a framework where the law has a significant impact on their work. The law intersects with various aspects of marketing, necessitating an understanding of tort law, consumer protection law, and intellectual property law. It is crucial for marketers to remain vigilant and compliant within this legal landscape.
One aspect of law that marketers need to be acutely aware of is tort law. To avoid potential charges of libel, marketers must exercise caution and refrain from making statements that defame individuals, businesses, or products. In highly competitive markets, the temptation to resort to such tactics may be strong, but it is essential to adhere to ethical standards and the principles of tort law.
Deceptive advertising practices are another area of concern for marketers. Engaging in misleading or false advertising can lead to legal complications and reputational damage. Companies must strive to stay in compliance with the Federal Trade Commission's (FTC) regulations and the FTC Act to avoid legal repercussions. By adhering to the guidelines set by these regulatory bodies, marketers can maintain ethical standards and protect their companies from legal entanglements.
Intellectual property law is yet another facet of the legal environment that marketers must navigate. Understanding the boundaries of intellectual property, including copyright and trademark law, is crucial to avoiding inadvertent infringement in marketing materials and campaigns. By respecting the intellectual property rights of others and creating original work that does not infringe upon existing trademarks or copyrights, marketers can mitigate legal risks.
These examples underscore the interconnectedness of law with various business disciplines, including marketing. While this overview provides insight into the legal considerations for marketers, it is essential for each business professional to proactively familiarize themselves with the legal environment relevant to their specific field. Employers may offer training programs on legal environment issues, such as anti-sexual harassment or anti-insider trading training, but the onus is on each individual to take responsibility for understanding the legal framework that governs their profession. Ignorance of the law is not a valid defense, making it imperative for professionals to prioritize legal knowledge as an integral aspect of their expertise.
1. Finding a Newspaper Article:
To find a newspaper article illustrating a legal problem in a specific business discipline, you can follow these steps:
Select your preferred business discipline (e.g., accounting, marketing, management, finance, etc.).
Use online news sources or databases such as Google News, LexisNexis, or industry-specific news outlets to search for recent articles related to legal issues within that discipline.
Keywords for your search could include the name of the discipline and terms like "legal issue," "lawsuit," "regulation," "compliance," or "litigation."
Review the articles you find to identify a specific legal problem that could have been avoided with a better understanding of the legal environment of business.
2. Minimizing Liability Exposure:
Employers can use knowledge of the legal environment of business to minimize liability exposure by:
Implementing robust compliance and ethics training programs for employees to ensure they understand legal requirements and standards.
Developing clear and comprehensive company policies and procedures that align with relevant laws and regulations.
Regularly consulting with legal professionals or in-house counsel to stay informed about changing laws and industry-specific legal issues.
3. Staying Current with the Legal Environment:
Employers can stay current with the legal environment of business by:
Subscribing to legal newsletters and publications specific to their industry.
Participating in industry associations and attending seminars or conferences that address legal matters.
Monitoring relevant government agencies' websites for updates on regulations and compliance requirements.
Engaging legal counsel or consultants to conduct regular legal compliance audits.
4. Employer Liability in Training:
Whether employers should be held liable for their employees' actions after providing training depends on various factors, including the effectiveness of the training, the circumstances of the specific case, and applicable laws. In many cases, if an employer has taken reasonable steps to prevent workplace misconduct through training and clear policies, they may have legal defenses against liability. However, there are exceptions, such as if the employer knew about the behavior and failed to take appropriate action. Liability in such situations can be complex and fact-specific, requiring legal evaluation.
It's important to consult with legal professionals and stay informed about the legal standards in your jurisdiction to make informed decisions regarding employer liability in training and employee behavior.
This chapter serves as an essential introduction to the legal environment of business. A comprehensive grasp of this environment is vital for the success of business practices. This entails not only understanding the nature and origins of law but also recognizing its specific relevance to the business world. Moreover, it's essential to be aware of the diverse legal philosophies that exist. Examining problems from different angles allows for exploration of various possible outcomes. Furthermore, when individuals approach the same issue from differing legal perspectives, it's not uncommon for reasonable minds to diverge on the expected outcomes. Being well-versed in government structure and having a firm understanding of the rule of law are paramount for effective business operations. Ultimately, business professionals should have the capability to identify legal situations, reduce potential liabilities, and know when it's prudent to seek legal counsel.
As you delve into your study of the legal environment, it's important to keep your orientation intact. Ask yourself questions like "How does this piece of law fit into the business world?" and "Why is it crucial for me to have knowledge about this?" The study of law may occasionally resemble an attempt to piece together a vast jigsaw puzzle. Initially, you might not see how individual components connect, but with diligent study of the law, their interconnections will gradually become evident. Often, with this comprehension, the depth of the legal system becomes clearer.
Furthermore, it can be highly beneficial to actively seek out contemporary examples of the concepts discussed in this book. Whether you're browsing the Internet, watching films, or following current events, try to engage in "issue spotting." In other words, aim to pinpoint the legal issues arising from the specific problems presented. Strive to identify the jurisdiction that would have authority over the issue – is it a matter for state or federal government, or both? Also, endeavor to determine which type of law would prevail or be decisive in determining the outcome – is it a statutory, constitutional, or regulatory issue? This practice will enhance your understanding of real-world applications of legal concepts.
Furthermore, it's valuable to challenge yourself by asking why a particular dispute has arisen. Consider whether the involved parties could have resolved the issue independently and, if not, the reasons behind it. Has the matter escalated to litigation, and if so, what factors led to this outcome? Additionally, reflect on how the dispute might have been prevented with more comprehensive planning and a deeper understanding of the legal environment.
Chapter 2 Lesson: The Court System
The three branches of government in the United States, as outlined in the U.S. Constitution, play distinct roles and provide a system of checks and balances to ensure that no single branch becomes too powerful. Here's a brief overview of each branch's role:
Legislative Branch (Congress):
The legislative branch is responsible for making and passing laws. It consists of two chambers: the House of Representatives and the Senate.
The House of Representatives is composed of members elected by the people from each state based on their population.
The Senate is composed of two senators from each state, regardless of its size.
Congress has the power to propose and pass bills, approve budgets, declare war, and oversee government agencies through its various committees.
Executive Branch (The President and the Executive Departments):
The executive branch is headed by the President, who is the head of state and government.
The President is responsible for implementing and enforcing laws, managing foreign policy, serving as Commander-in-Chief of the military, and appointing federal judges and other government officials.
The executive branch also includes executive departments and agencies, each responsible for specific functions, such as the Department of State, Department of Defense, and the Department of Justice.
Judicial Branch (Federal Courts):
The judicial branch is responsible for interpreting and applying the law to resolve legal disputes. The federal court system is organized hierarchically.
At the top of the federal judiciary is the Supreme Court, which has the authority to review and overturn decisions made by lower federal courts and state courts if they involve federal law or constitutional issues.
Lower federal courts include District Courts (trial courts) and Courts of Appeals (appellate courts).
To balance the judiciary, the other two branches of government have the following roles:
Legislative Branch: Congress has the power to create and fund the federal courts, including the Supreme Court, and to determine the number and jurisdiction of federal judges. They can also propose and pass constitutional amendments that might affect the judiciary.
Executive Branch: The President appoints federal judges, subject to Senate confirmation, and has the authority to pardon or commute sentences for federal offenses. The President also plays a role in enforcing court decisions.
The structure of state and federal courts varies by jurisdiction. State court systems are generally organized similarly to the federal system, with trial courts, appellate courts, and a state supreme court. However, the names and specific procedures can differ from state to state.
The primary differences between trial and appellate courts are as follows:
Trial Courts: These are the courts where legal disputes are initially heard and resolved. They conduct trials, receive evidence, and make initial determinations of fact and law. In criminal cases, they determine guilt or innocence, and in civil cases, they issue judgments.
Appellate Courts: These courts review decisions made by trial courts to ensure that they were made correctly according to the law. Appellate courts do not retry cases but instead review legal issues, errors, or questions of procedure that may have affected the outcome. They may affirm, reverse, or remand cases back to the trial court for further proceedings.
The U.S. Supreme Court is the highest court in the federal judiciary. It operates as follows:
The Supreme Court primarily acts as an appellate court, reviewing cases on appeal from lower federal courts and state supreme courts.
The Court selects cases it wishes to hear, typically based on their legal significance or to resolve conflicts among the lower courts.
Oral arguments are held, during which attorneys present their cases to the justices.
Justices deliberate, research, and write opinions. A majority decision becomes the law.
The Court's decisions set legal precedents and have a significant impact on the interpretation of the Constitution and federal law.
The Supreme Court's decisions are final and binding, making it a crucial institution for shaping the legal landscape in the United States.
As you are now aware, the effectiveness of laws hinges on their enforcement. Companies navigate a multitude of decisions daily, encompassing product development, marketing, and growth strategies, predominantly guided by sound business judgment rather than legal obligations. However, when a company does transgress a law, it must be held responsible. Typically, this accountability takes the form of a lawsuit conducted in a court of law. Whether instigated by a supplier, customer, employee, shareholder, or another stakeholder, litigation is an inescapable aspect of a company's existence. As aspiring business professionals, gaining familiarity with our judicial system is a fundamental step in building your comprehension of the litigation process.
Constitutional Basis for the Judicial Branch:
The constitutional basis for the judicial branch in the United States is outlined in the U.S. Constitution, specifically in Article III. This article establishes the federal judiciary and its powers. It provides for the creation of the Supreme Court and allows for the establishment of lower federal courts by Congress. Article III also outlines the authority and jurisdiction of the federal courts and the appointment of federal judges. The Constitution empowers the judiciary to interpret the law, resolve legal disputes, and uphold the Constitution itself.
Differences Among the Three Branches of Government:
The three branches of government in the U.S. each have distinct roles:
The legislative branch (Congress) makes and passes laws.
The executive branch (the President and executive agencies) enforces and administers the laws.
The judicial branch (federal courts) interprets and applies the laws, resolves legal disputes, and reviews the constitutionality of laws.
Chief Justice’s Role in Judicial Administration:
The Chief Justice of the United States serves as the leader of the Supreme Court. While the Chief Justice has the same role as other justices in deciding cases, they also have administrative responsibilities. The Chief Justice presides over the Court's public sessions, assigns writing responsibilities for opinions when they are in the majority, and represents the judiciary in interactions with the executive and legislative branches. Additionally, the Chief Justice plays a vital role in shaping the Court's agenda and setting the tone for its decisions.
Concept of Judicial Review:
Judicial review is a fundamental concept in American constitutional law. It refers to the power of the federal courts, particularly the Supreme Court, to review and potentially invalidate laws or government actions that are deemed unconstitutional. Through judicial review, the courts can determine whether a law or government action complies with the U.S. Constitution. This power allows the judiciary to serve as a check on the legislative and executive branches and safeguard the Constitution's supremacy.
Checks and Controls on the Judiciary:
The other two branches of government, the legislative and executive branches, have several mechanisms to check and control the judiciary:
Legislative Control: Congress has the authority to create and organize the federal courts, set the number of federal judges, and define the jurisdiction of these courts. Congress can also propose constitutional amendments that might impact the judiciary.
Executive Control: The President appoints federal judges, including Supreme Court Justices, with the Senate's consent. The executive branch is responsible for enforcing and implementing court decisions.
These checks and balances ensure that no single branch becomes too powerful, helping to maintain the separation of powers as designed by the U.S. Constitution.
Under the federal Constitution, power is carefully divided among three distinct branches of government. Article I of the Constitution assigns the legislative authority to Congress, a bicameral body comprising the House of Representatives and the Senate. Congress plays a pivotal role in lawmaking and serves as the representative of the people's will.
Article II of the Constitution establishes the executive branch, vesting executive authority in the President of the United States. The President's primary responsibility is the enforcement of the laws enacted by Congress.
Article III of the Constitution creates a self-contained and autonomous judicial branch, tasked with the duty of applying and elucidating the legal framework. At its pinnacle stands the U.S. Supreme Court, serving as the ultimate court of the land, presided over by nine esteemed justices.
The Constitution provides only succinct guidance on the judicial branch. Article II bestows upon the President the authority to nominate judges, subject to the Senate's advice and consent. Meanwhile, Article III establishes that "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."
Consequently, the Constitution imposes just two prerequisites for federal judges: presidential nomination and Senate confirmation. Remarkably, it sets no age, citizenship, or qualification stipulations. This means that, theoretically, the President could nominate any reader of this book to a federal judgeship. Furthermore, the Constitution safeguards judges from political influence by granting them lifetime tenure and ensuring their salaries remain untouched.
While it is commonly asserted that the three branches of government are coequal, their nature and role vary substantially. The judiciary stands out as the sole branch without direct elections, making it the most enigmatic. While many Americans can readily identify the President and their congressional representatives, the judges presiding over the Supreme Court and lower courts often remain unfamiliar to the public. As politicians campaign for Congress or the presidency, they engage in extensive efforts to gain voters' trust. Since judges do not face elections, the majority of Americans cannot associate a face with their names. In fact, many visitors to the Supreme Court building in Washington, DC, may inadvertently encounter a Supreme Court justice without recognizing them.
The three branches of government also diverge significantly in their resource consumption in serving the public. The entire federal court system, for instance, accounts for a mere fraction of the federal budget, totaling less than two-tenths of 1 percent. In contrast, the political branches capture the public's attention with iconic symbols and landmarks, from Air Force One and the White House to the Capitol. Meanwhile, the federal judiciary operates in relative obscurity. Notably, all federal judges, regardless of their status, travel via commercial means and lack access to government-owned aircraft.
Furthermore, the design of the judiciary is intentionally distanced from the general populace. Federal judges, being unelected, enjoy life tenure and can be removed from office solely through impeachment. This often results in judges holding public office for longer durations than elected politicians. In the history of the United States, there have been forty-four presidents and over two thousand members of Congress, while Chief Justice John Roberts is only the seventeenth chief justice. Appointed as chief justice at the age of fifty, he is poised to serve in that capacity for many decades, potentially outlasting the public prominence of his nominating president, George W. Bush.
When we mention the "federal judiciary," we are referring to a notably smaller entity compared to other federal government agencies. It encompasses the Supreme Court, including the building, justices, and supporting staff, as one segment. The district and appellate courts, which will be discussed later in this chapter, constitute another part, along with their judges and staff (though they do not have dedicated court buildings and instead rent space from other government branches). The Administrative Office of the United States Courts oversees the everyday functions of all these courts, such as managing payroll and rent. The Federal Judicial Center constitutes a third component, an agency committed to research on judicial administration and the provision of judicial education. The United States Sentencing Commission (USSC) forms a fourth part, established by Congress to make recommendations for establishing consistency in federal criminal sentencing.
In addition to these responsibilities, the chief justice plays a pivotal role in supervising the overall operation of the federal courts and representing the judiciary to the other branches of government. However, when it comes to hearing and adjudicating cases, the chief justice operates as the "first among equals," possessing no more authority than the other justices, who are known as associate justices.
In this role, the chief justice traditionally issues an annual report on the state of the judiciary. Since assuming the position in 2005, Chief Justice John G. Roberts has chosen to focus his annual reports on a critical issue: judicial compensation. While the Constitution safeguards judicial salaries from reduction, the passage of time has seen no congressional approval for cost-of-living adjustments for judges. Currently, district court judges receive an annual salary of $169,300, equivalent to that of members of Congress, whereas circuit court judges are compensated at $179,500. Supreme Court justices are paid $208,100, and the chief justice's salary stands at $217,400.
It is worth noting that, while these figures may appear substantial, they should be viewed in the context of judicial recruitment. The foundation of the judicial system's integrity rests on the ability to attract the most exceptional legal minds to the bench. However, lawyers of such caliber are often in high demand at private law firms, where they have the potential to earn considerably more than judges. Consequently, accomplished lawyers who might otherwise choose to serve the nation as judges may never contemplate this path. Chief Justice Roberts expresses a genuine concern that the pool of judicial talent could be restricted to individuals who are less exceptional in their legal acumen or those who possess significant personal wealth.
End of Year report to Congress:
I understand that this plea might feel repetitive to many, and I, too, am weary of reiterating it. Nevertheless, it remains crucial for me to express this plea once more—Congress must take immediate action to ensure that judicial compensation keeps pace with the rate of inflation. When judges chose the path of public service, they were well aware of the established salary levels. However, they could not have anticipated that Congress would gradually diminish the real value of their earnings by consistently failing to grant even basic cost-of-living adjustments over the years.
In the previous year, Congress came tantalizingly close to passing legislation, which had garnered bipartisan support and had been favorably reported by both House and Senate Committees on the Judiciary. This legislation sought to rectify the long-standing denial of cost-of-living salary increases for judges. Regrettably, one year later, Congress still has not finalized its commitment to this vital restorative measure, despite its negligible cost in relation to the national budget and the Judiciary's vital role.
Making matters even more concerning, Congress has once again neglected to provide federal judges with an annual cost-of-living adjustment, while extending this benefit to all other federal employees, including every Member of Congress. This year's inaction by Congress vividly illustrates the persistent erosion of judges' salaries in real terms over the past two decades.
Despite Congress's inaction, our Judiciary endures, thanks to the readiness of those in public service to make personal sacrifices for the greater good. The Judiciary remains resilient and can withstand the occasional neglect that often befalls those who quietly carry out their duties. However, the Judiciary's essential needs cannot be indefinitely deferred without risking harm to its very foundation. Given the modest cost of sustaining the Judiciary, and its paramount role in safeguarding the Constitution and the rights we hold dear, I must reiterate the Judiciary's modest appeal: It is high time for Congress to rectify this unjust denial and provide the long-overdue cost-of-living adjustments. The Judiciary has fulfilled its part—it is now incumbent on Congress to do the same.
The Supreme Court, while now a renowned institution, had a rather humble beginning. In its early days, some of the justices, initially appointed by George Washington, faced logistical challenges that prevented them from convening on the Court's scheduled opening day, leading to a premature dismissal of the session. For the first three years of its existence, the Court dealt with cases of minimal significance. John Jay, its first chief justice, even ventured to Europe during his tenure to negotiate the Jay Treaty with Great Britain and was subsequently elected as the governor of New York. Although he was re-appointed as chief justice by President Washington and confirmed by the Senate, he declined the position, citing the Court's lack of gravitas, influence, and dignity as part of his rationale.
It was only with the arrival of John Marshall, the fourth chief justice, who held the position for a record thirty-four years, that the Supreme Court firmly solidified its identity as an independent and coequal branch of government. Surprisingly, the Supreme Court did not acquire its dedicated building until 1932, many years after the nation's capital was established in Washington, D.C. Prior to that, it convened in the basement of the old Senate building to hear cases. The turning point came when William Taft, the only president to also serve as a Supreme Court justice, successfully lobbied Congress to allocate funds, ultimately providing the Court with its own building in Washington, D.C.
The initial challenges faced by the Supreme Court can be partially attributed to a fundamental uncertainty surrounding its purpose and role. In the early days of the new republic, there were few cases of substantial national significance. Furthermore, a peculiar practice known as "riding circuit" required Supreme Court justices to also serve as lower appellate court judges, creating a certain degree of redundancy in their work. The Constitution itself merely states that the judicial power of the United States is vested in the Supreme Court, without providing explicit details on its function. It wasn't until 1803 that the modern role of the Supreme Court began to take shape.
In the pivotal presidential election of 1800, which pitted John Adams against Thomas Jefferson, the nation teetered on the brink of division. The election was characterized by bitterness, partisanship, and divisiveness. Jefferson ultimately emerged victorious, though his official declaration as the winner did not occur until early 1801. During this transitional period, Adams and other Federalists in Congress sought to influence the government by establishing a series of new life-tenured judgeships and appointing Federalists to these positions. To activate these judgeships, certain documents (referred to as commissions) needed to be personally delivered to the new judges.
As the power shift unfolded from Adams to Jefferson, several of these commissions remained undelivered. In response, Jefferson directed his acting secretary of state to withhold their delivery. When Jefferson took office, there wasn't a single Democratic-Republican Party-affiliated judge on the bench, and he was reluctant to further expand Federalist influence in the judiciary. One Federalist judge, William Marbury, took legal action against the secretary of state, James Madison, to compel the delivery of his commission. The case was brought before the Supreme Court, presided over by Chief Justice John Marshall. Marshall himself was a Federalist and had served as Adams's secretary of state, which made him acutely aware of the political sensitivity of the case and the potential accusations of bias.
In a strategic and momentous ruling, Chief Justice Marshall decided against Marbury but concurrently asserted that it was the Supreme Court's responsibility to interpret the Constitution's meaning. This landmark concept is known as judicial review and positions the U.S. Supreme Court as the most potent judicial body globally. In the words of Marbury v. Madison: "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each" (Marbury v. Madison, 5 U.S. 137 (1803)).
Chief Justice Marshall did not invent the concept of judicial review, which has a historical precedent in most common-law countries and dates back centuries. However, he played a pivotal role in institutionalizing judicial review within the U.S. Supreme Court during a period of significant uncertainty regarding the Court's role in the government. While all three branches of government are bound to uphold the Constitution, the Supreme Court holds the ultimate authority on matters concerning the Constitution's interpretation.
Following the Marbury v. Madison ruling, it took nearly six decades for the Supreme Court to again exercise the power of judicial review to nullify legislation. This significant case was Dred Scott v. Sanford (Dred Scott v. Sanford, 60 U.S. 393, 1857), which revolved around a slave who had traveled to various states, including free states, in the company of his owner, a military doctor Dred Scott. Dred Scott initiated legal proceedings to secure his freedom, ultimately leading to the case's presentation before the Supreme Court.
In a controversial decision, often referred to as the Supreme Court's "self-inflicted injury," Chief Justice Roger Taney authored the majority opinion that employed judicial review to invalidate the Missouri Compromise. The Court ruled that Dred Scott was not considered a person under the Constitution and, therefore, lacked the standing to file a lawsuit. This decision accelerated the nation's descent into the Civil War and significantly tarnished the Supreme Court's public standing, requiring years to recover its reputation.
Judicial review empowers any federal court, from the trial courts to the appellate courts, to assess the constitutionality of presidential or congressional actions. This authority is vested in each of the over eight hundred federal judges. It is an extraordinary power within a democratic system, as it allows unelected, life-tenured individuals or groups to nullify the actions of a popularly elected branch of government. However, instead of fostering judicial tyranny, our system of checks and balances guarantees that the other two branches of government also play a crucial role in "checking" the judiciary.
For instance, consider the executive branch's role. The president can exert influence over the judiciary through judicious judicial nominations. The president wields absolute authority in appointing federal judges and is not required to seek input from others in this decision-making process. As a matter of tradition, presidents have historically relied on senators to suggest potential judicial candidates for consideration. Some presidents are more inclined than others to defer to the advice of their aides and advisors. Throughout much of the nation's history, the Senate routinely confirmed the president's choices. However, the nomination of Robert Bork by President Reagan in 1987 forever altered this tradition. Concerned Democrats subjected Bork to rigorous confirmation hearings and ultimately rejected his confirmation, marking the inception of a new era of confirmation hearings where senators not only scrutinize the nominee's character but also assess their stance on specific issues. Today, judicial nominees, particularly for the Supreme Court, face intense scrutiny, sometimes leading members of the president's own party to oppose a nominee. A case in point is President George W. Bush's nomination of his close friend Harriet Miers to fill a vacancy left by Justice Sandra Day O'Connor's retirement. Perturbed by Miers' lack of judicial experience and her stance on conservative judicial matters, Republicans urged the president to reconsider his choice, eventually resulting in Ms. Miers withdrawing her nomination.
Presidents typically aspire and believe that their judicial selections mirror their own ideologies and beliefs. Nevertheless, federal judges are well-known for their independence, often displaying no hesitation in overturning the positions or preferences of the president who nominated them when they deem it necessary. Several presidents have encountered disappointment when their nominees diverged from their original political inclinations. For instance, President Eisenhower, a Republican, appointed Earl Warren as chief justice, who would later revolutionize the civil rights landscape through a series of decisions. Eisenhower famously lamented that nominating Warren was "the biggest damned fool mistake I ever made."
Similarly, President Nixon, also a Republican, placed Harry Blackmun on the Supreme Court, only to witness Blackmun's gradual shift toward more liberal positions, culminating in his authorship of Roe v. Wade (Roe v. Wade, 410 U.S. 113, 1973), the landmark decision legalizing access to abortion services. More recently, President George H. W. Bush nominated David Souter to the Court, believing he would be a reliable conservative justice. However, Souter promptly aligned himself with the liberal wing of the Court.
In addition to nominating judges, the president also serves as a check on the judiciary by acting as the primary enforcer of judicial decisions. Federal judges lack control over any police force and, therefore, cannot independently ensure the implementation of their rulings. This responsibility falls squarely within the purview of the executive branch. Regardless of how much a president may disagree with a judicial decision, it stands as a testament to the principles of our republican form of government and the rule of law that the president faithfully executes the directives of a federal court's decision.
Following the landmark Supreme Court ruling in Brown v. Board of Education (Brown v. Board of Education, 347 U.S. 483, 1954), several Southern states stubbornly resisted desegregation efforts. In a particularly significant episode in Little Rock, Arkansas, the local NAACP chapter initiated the enrollment of nine students at Little Rock High School, coinciding with the commencement of the fall term in September 1957. This move was met with vehement protests from various segregationist groups. Arkansas Governor Orval Faubus, in response, ordered the deployment of Arkansas National Guard troops to prevent the students from entering the school.
Reluctantly, President Eisenhower took action, directing the 101st Airborne Division of the U.S. Army to Little Rock to ensure the students' enrollment and attendance at school. This momentous event is a poignant episode in the ongoing struggle for desegregation. To gain deeper insight, you can access the following link to listen to the story of one of the students, Elizabeth Eckford, who attempted to enroll at Little Rock High School on that historic day.
Congress holds a pivotal role in "checking" the judiciary, with one of its most prominent functions being the confirmation of judicial nominees. In recent years, the process of judicial confirmations has evolved into a political battleground, with activists on both ends of the spectrum attempting to obstruct nominees they perceive as excessively radical. It's not uncommon for certain judicial candidates to endure protracted waits for their confirmation hearings. For instance, President George W. Bush nominated Chief Justice Roberts to a court of appeals judgeship in 2001, but his confirmation did not occur until 2003, following the Republicans' regaining control of Congress during midterm elections. A similar situation transpired with the most recent addition to the Supreme Court, Elena Kagan, who was nominated for a federal appellate judgeship in 1999 by President Bill Clinton but faced non-confirmation due to Republican objections.
Moreover, Congress exercises its control over the judiciary through the annual budgetary process. While the Constitution safeguards judicial salaries against reductions, it does not mandate pay raises. Judges have, for several years, been without cost-of-living increases. While there is no serious suggestion that Congress is withholding funds from the courts as retribution for judicial decisions, some observers have noted that Congress may be inclined to consider pay raises in exchange for concessions from the judicial branch on certain high-profile issues, such as the potential televising of Supreme Court proceedings.
Congress holds the authority to exert control over the judiciary by determining the courts' organization and defining the types of cases they can adjudicate. An illustrative example of this was evident after the 1800 presidential election when the newly elected Congress suspended the Supreme Court's term for an entire year while they undertook a comprehensive reorganization of the judiciary. More recently, certain conservative members of Congress have proposed the division of the liberal-leaning Ninth Circuit Court of Appeals on the West Coast as a measure to diminish its influence.
The Constitution also vests Congress with the power to specify the courts' jurisdiction. Congress has historically exercised this authority to remove contentious cases from judicial consideration. For instance, during the era of Civil War Reconstruction, Congress enacted a law that stripped the Supreme Court of its jurisdiction to hear an appeal from a newspaper publisher who had been imprisoned for publishing articles opposing Reconstruction (Ex parte McCardle, 74 U.S. 506, 1869). In more recent times, Congress has employed the same approach, revoking federal court jurisdiction to hear appeals related to detainees held at the military prison in Guantanamo Bay.
Additionally, members of Congress have introduced legislation that seeks to restrict federal courts from hearing cases related to the public display of religion, flag burning, or from utilizing foreign law as a basis for their decisions. These legislative efforts exemplify the multifaceted ways in which Congress can influence the judicial branch.
Judicial Review: Judicial review is generally considered an essential component of American democracy. It provides a crucial mechanism for the judiciary to ensure that government actions, including laws passed by the legislative branch and executive orders, adhere to the Constitution. By allowing courts to strike down unconstitutional laws and actions, it helps protect individual rights and the rule of law. However, the extent of judicial review and its implications are subjects of ongoing debate. Some argue that it empowers unelected judges to make decisions with significant policy implications, while others see it as a necessary safeguard against potential government overreach.
Judicial Independence: The Constitution guarantees judicial independence by providing federal judges with life tenure and prohibiting the reduction of their salaries. This is intended to insulate judges from political pressure and ensure they can make impartial decisions based on the law and the Constitution. The question of whether judges have enough or too much independence is a matter of ongoing discussion. Striking the right balance between independence and accountability is a complex issue.
Judicial Compensation: Determining the appropriate salary for federal judges is a matter for Congress to decide. It should aim to attract highly qualified individuals to the bench while maintaining fiscal responsibility. This question often involves a trade-off between ensuring competitive compensation to retain top legal talent and being mindful of government spending.
Congressional Ability to Remove Cases: Congress does have the power to alter the jurisdiction of federal courts and potentially remove certain cases from their purview. The appropriateness of doing so depends on the specific context. It should be guided by considerations of fairness, efficiency, and the separation of powers.
Presidential Response to Court Opinions: A president has several options if they disagree with a federal court's opinion. They can appeal the decision to a higher court, work with Congress to change the law, or, in some cases, implement the decision. The exact response will depend on the specifics of the case and the president's interpretation of the Constitution.
Forced Desegregation: The question of whether a federal court should mandate desegregation in a community that opposes it is complex and has been a topic of considerable debate. Federal courts must uphold the Constitution, including decisions like Brown v. Board of Education, which declared segregation in public schools unconstitutional. These decisions are intended to ensure equal protection under the law. Balancing these constitutional principles with local sentiments and concerns is a challenging task, and it often leads to court-ordered remedies designed to facilitate desegregation while considering community dynamics.
2.2.2 Activists and Strict Constructionists
Strict Constructionist (Originalist) Judicial Philosophy:
Definition: Strict constructionism, often referred to as originalism, is a judicial philosophy that holds that the Constitution should be interpreted based on the original intent of the framers and the text of the document. Originalists argue that judges should adhere closely to the words and historical context of the Constitution.
Key Figures: Prominent originalist thinkers include Justice Antonin Scalia, Justice Clarence Thomas, and legal scholar Robert Bork.
Arguments: Advocates argue that originalism provides a clear and objective method for interpreting the Constitution and maintains the integrity of the framers' vision.
Judicial Activist Philosophy:
Definition: Judicial activism is a philosophy that views the Constitution as a living document that can evolve and adapt to changing societal circumstances. Judicial activists argue that judges should interpret the Constitution in ways that promote justice and equity.
Key Figures: Prominent proponents include Justice William J. Brennan Jr. and Justice Thurgood Marshall.
Arguments: Advocates argue that judicial activism allows the judiciary to address contemporary issues and protect individual rights, even when the Constitution's original intent may not provide explicit guidance.
Modern Origin of the Divide:
The divide between strict constructionism and judicial activism became pronounced during the mid-20th century. It was influenced by landmark Supreme Court cases such as Brown v. Board of Education (1954) and Roe v. Wade (1973), which addressed issues of civil rights and reproductive rights, respectively. These cases highlighted the tension between interpreting the Constitution as a fixed document and adapting it to evolving social norms and values.
Evolution of the Right to Privacy:
The right to privacy has evolved through a series of Supreme Court decisions. Notably, Griswold v. Connecticut (1965) recognized a constitutional right to marital privacy, while Roe v. Wade (1973) extended the right to an individual's decision to have an abortion. The right to privacy has been a pivotal aspect of cases involving issues such as contraception, abortion, and same-sex marriage.
Biographies of Current Supreme Court Justices:
The composition of the Supreme Court may have changed, but here are some biographical highlights of 2022 the justices:
Chief Justice John Roberts
Associate Justice Clarence Thomas
Associate Justice Stephen Breyer
Associate Justice Samuel Alito
Associate Justice Sonia Sotomayor
Associate Justice Elena Kagan
Associate Justice Neil Gorsuch
Associate Justice Brett Kavanaugh
Associate Justice Amy Coney Barrett
In the early years of the United States, judges often had a more overtly political role than they do today. Many of them were former statesmen or diplomats, and they sometimes viewed their positions as extensions of their political careers. For instance, during the highly contentious presidential election of 1800 between John Adams and Thomas Jefferson, the bitterness and partisanship were noteworthy. When Jefferson emerged victorious, he faced a situation where not a single federal judge in the country belonged to his political party. Jefferson, who was distrustful of judges, expressed his concerns when the Supreme Court issued the Marbury v. Madison decision in 1803, establishing the Court as the ultimate arbiter of constitutional questions. He described this as a "very dangerous doctrine" that could lead to the tyranny of an oligarchy.
A few years later, the first justice to be impeached, Samuel Chase, faced accusations of excessive political bias. His impeachment, followed by acquittal, marked a turning point toward greater nonpartisanship and political impartiality among judges. Today, judges continue the tradition of exercising impartiality in cases before them. Nevertheless, allegations of political bias are occasionally made against judges at various levels of the judiciary.
In practice, the majority of a judge's work focuses on matters unrelated to politics. Even at the Supreme Court level, most cases involve conflicts among circuit courts of appeals or statutory interpretation. However, in a small minority of cases, federal judges are tasked with interpreting cases related to sensitive topics such as religion, race, or civil rights. In these instances, judges must rely on their interpretation of case law and their own conscience, which has led some activists to accuse judges of using their positions to advance personal political agendas. This tension between the role of the judiciary in upholding the law and potential perceptions of political bias remains a complex aspect of the American legal system.
In broad terms, judges are often categorized into one of two ideological camps. On the politically conservative right, judges are often characterized as either strict constructionists or originalists. Judges who adhere to this philosophy believe that the responsibility for social change rests with the politically elected branches of government, and the role of judges is to strictly interpret the Constitution, without overreaching. Strict constructionists also assert that the Constitution constitutes the exhaustive list of rights that Americans enjoy, and any right not explicitly mentioned in the Constitution does not exist and must be obtained through legislative action or constitutional amendment. Judges, according to this philosophy, lack the authority to create entirely new rights that are absent from the Constitution. Instead, they hold the view of original meaning, which involves interpreting the Constitution based on the framers' intentions when it was written, rather than adapting it to contemporary societal interpretations. Strict constructionists argue that injecting new rights into the Constitution is a perilous undertaking, as it lacks clear guidance for the development of new rights, leaving it solely to the discretion of individual judges.
For instance, Justice Antonin Scalia, appointed to the Supreme Court by Ronald Reagan in 1984, is often regarded as a prominent modern strict constructionist. His judicial philosophy aligns with the principles of strict constructionism, emphasizing adherence to the Constitution's original intent and resisting the introduction of new rights through judicial interpretation.
On the politically liberal left, there are judges often characterized as judicial activists. Judicial activists believe that judges play a vital role in shaping a "more perfect union," as described in the Constitution. They hold the view that judges have a responsibility to pursue justice whenever possible. These judges consider the Constitution to be a "living document" and argue that it should be interpreted in the context of society's evolving needs rather than rigidly adhering to its historical meaning. Judicial activists contend that the political process can be flawed, and majority rule may sometimes lead to the enforcement of less enlightened principles. Their role, as they see it, is to safeguard the voices of minority and oppressed groups and to uphold the Constitution's promise of liberty for all Americans. Judicial activists advocate for a broad interpretation of the Constitution, preferring to consider the motivation, intent, and implications of its safeguards, rather than solely focusing on its literal words.
The era of judicial activism at the Supreme Court reached its zenith in the 1960s, particularly under the leadership of Chief Justice Earl Warren. Although appointed by Republican President Eisenhower, Warren emerged as a more activist judge than anticipated after joining the Supreme Court. He spearheaded the Court's groundbreaking decisions on civil rights protections, especially during the desegregation cases in the 1950s, including the pivotal case affecting the Little Rock Nine. Chief Justice Warren is also credited with the introduction of the "Miranda" warnings, which are now familiar to most Americans through police shows and movies, as well as the establishment of the right to publicly funded counsel for individuals who cannot afford an attorney in many criminal cases. These significant developments reflect the influence of judicial activism during his tenure.
The modern characterization of judges as politically motivated can be traced back to the era of the Great Depression. In response to the catastrophic economic upheaval, Americans elected Franklin D. Roosevelt to the presidency in record numbers and gave his Democratic Party commanding majorities in both the Senate and the House of Representatives. President Roosevelt pledged to reshape the relationship between the people and their government to prevent the kind of destruction and despair wrought by the Depression. The cornerstone of his reform agenda was the New Deal, a comprehensive legislative package that fundamentally redefined the government's role, significantly expanding its size and its involvement in private economic activities. The New Deal introduced measures such as maximum working hours, minimum wage laws, mortgage assistance, economic stimulus initiatives, and social safety nets, including Social Security and insured bank deposits.
While there was substantial agreement between the White House and Congress on the New Deal, the Supreme Court was dominated by a narrow majority referred to as the "Four Horsemen of the Apocalypse" because of their dire warnings regarding the potential consequences of extensive economic regulation. Opposing the Four Horsemen were three justices known as the "Three Musketeers" – Justice Brandeis, Justice Cardozo, and Justice Stone. Sitting between these two factions were two swing votes. Initially, the Four Horsemen held sway, leading to the invalidation of various components of President Roosevelt's New Deal as unconstitutional exercises of federal authority.
Frustrated by these developments, President Roosevelt devised a plan to alter the composition of the Supreme Court by increasing the number of judges and appointing new justices, a proposal often referred to as the "court-packing plan." Although this plan was never implemented due to public opposition, the swing votes on the Supreme Court changed their stance and began to uphold New Deal legislation. Historians subsequently characterized this shift as the "switch in time that saved Nine." Throughout the public debate over the Supreme Court's rulings on the New Deal, the justices faced relentless criticism for being politically motivated, with some of the most vocal criticism originating from the White House.
Fireside Chats:
One of the defining features of Franklin D. Roosevelt's presidency was his adept use of the radio to connect with millions of Americans nationwide. He frequently delivered his "fireside chats" via radio broadcasts to both inform and persuade the public. In one of these broadcasts, President Roosevelt expressed strong dissatisfaction with the Supreme Court, asserting that "the Court has been acting not as a judicial body, but as a policy-making body."
This accusation against the Court's role in shaping policy was made in the context of the New Deal and the Supreme Court's initial resistance to some of its key components. FDR's criticism was part of his broader efforts to garner support for his agenda, including the reformation of the Court's composition.
In contemporary politics, accusations of the judiciary engaging in policy-making are not uncommon. Some modern politicians and political commentators continue to make similar claims when they believe that court decisions have exceeded the proper boundaries of interpreting the law and have instead ventured into shaping public policy. Such accusations often arise in debates over issues like abortion, gun control, and civil rights, where judicial decisions carry significant implications for social and political matters. As a result, the perception of judicial activism and policy-making by the courts remains a topic of debate in American politics.
The abortion debate serves as a prominent illustration of the politically charged atmosphere that surrounds modern judicial politics. Strict constructionists often criticize the Supreme Court's decision in Roe v. Wade as an example of judicial activism. They express concern that, in a democratic society, the public has never had the opportunity to vote on one of the most socially divisive and controversial issues of our time. Roe v. Wade established that a woman has a right to privacy, and this right must be weighed against the government's interest in preserving human life. During the first trimester of pregnancy, the right to privacy prevails over governmental intervention. Since there is no explicit mention of a right to privacy in the Constitution, strict constructionists argue that Roe lacks a solid constitutional foundation.
It is important to note that Roe v. Wade did not explicitly declare a right to privacy in the Constitution. This right was established through a series of earlier cases. In 1965, the Supreme Court overturned a Connecticut law that prohibited unmarried couples from purchasing any form of birth control or contraceptives in the case of Griswold v. Connecticut. The Court argued that the First Amendment encompasses a "penumbra of privacy," which includes the right for couples to make decisions about when and if they want to have children. Two years later, the Supreme Court found a right to privacy in the due process clause when it ruled that laws prohibiting mixed-race marriages were unconstitutional in Loving v. Virginia. These decisions, along with others, contributed to the widespread acceptance of the phrase "right to privacy" as a litmus test for determining whether a judge or judicial candidate is a strict constructionist or a judicial activist.
In the context of the abortion debate, the interpretation of the right to privacy is a central point of contention, highlighting the ongoing ideological division in judicial philosophy and political discourse.
Due to their lifetime appointments, the turnover rate for federal judgeships is generally low. Recently, the Supreme Court experienced an eleven-year period without any changes in its membership. However, in the last five years, there have been significant changes in the Court's composition.
It began in 2005 when President George W. Bush nominated John Roberts to replace the retiring Justice Sandra Day O'Connor. Roberts, a young, intelligent, and politically well-credentialed judge, was first nominated to fill an associate justice position. But before the Senate could confirm him, Chief Justice William Rehnquist passed away from thyroid cancer while still in office. In response, President Bush withdrew Roberts' nomination and re-nominated him as chief justice, a nomination that the Senate confirmed. This unexpected turn of events prompted a search for a replacement for Justice O'Connor, leading to the nomination of Harriet Miers, a close personal friend of President Bush. However, her nomination faced criticism due to her lack of judicial experience, and she eventually withdrew it.
For his second nomination to replace O'Connor, President George W. Bush selected Samuel Alito, whose prior judicial record made him a safer choice. While Alito has been on the Court for only a few years, his nomination is seen as a significant move to the political right. He is often regarded as more ideological in his opinions compared to the pragmatic O'Connor.
In President Barack Obama's first term, he had the opportunity to name two justices to the Supreme Court. Sonia Sotomayor was nominated in 2009 to replace David Souter, and Elena Kagan in 2010 to replace John Stevens. Both nominations were generally perceived as not shifting the Court significantly in either direction in terms of judicial activism or strict constructionism. These nominations resulted in a historical record with three women serving on the Supreme Court at the same time.
Whether judges have an obligation to overturn "uncommonly silly" laws is a matter of judicial philosophy and interpretation of the Constitution. Some judges believe that their role is to strictly interpret the law and the Constitution, and that it is primarily the responsibility of the legislature to make or change laws. Others may view their role more broadly and consider it their duty to protect fundamental rights and ensure that laws are just and constitutional. It ultimately depends on the individual judge's judicial philosophy.
Modern judicial confirmation hearings are often criticized for being scripted and revealing little about a nominee's true judicial philosophy. This is because nominees are often cautious during the hearings to avoid making statements that could later be used against them. Whether changes should be made to the confirmation process is a matter of debate. Some argue for more transparency and detailed discussions of nominees' judicial philosophies, while others believe that the existing process is appropriate to maintain the independence of the judiciary.
When nominating federal judges, a president may look for various characteristics, including legal qualifications, experience, judicial temperament, and a commitment to upholding the Constitution. Presidents often seek individuals who align with their own political and judicial philosophies.
The question of whether courts should grant citizens a right to privacy when the legislature does not is a complex one. It depends on the legal and constitutional framework of a particular country. In the United States, for example, the Supreme Court has recognized a right to privacy as an inherent part of the Constitution in certain contexts, such as in the landmark case of Griswold v. Connecticut. The appropriateness of such decisions is a matter of legal interpretation and debate.
In the United States, the president does not have the authority to change the number of justices on the Supreme Court or force early retirement. The number of justices on the Supreme Court is set by law, and any changes to the Court's composition would require congressional legislation. The independence of the judiciary is a fundamental principle in many democracies, and altering the number of justices for political reasons would be a significant departure from that principle.
2.3.3 Trial and Appellate Courts:
Differences Between State and Federal Constitutions:
State Constitutions: Each state in the United States has its own constitution, which serves as the supreme law within that state. State constitutions can provide additional rights and protections beyond those in the U.S. Constitution.
Federal Constitution: The U.S. Constitution is the supreme law of the entire country. It establishes the framework for the federal government, including the three branches (legislative, executive, and judicial) and the division of powers between the federal and state governments.
Subject Matter Jurisdiction:
Subject matter jurisdiction refers to a court's authority to hear cases of a specific type or subject matter. Different courts, whether federal or state, have specific subject matter jurisdictions.
Federal Courts: Federal courts have limited subject matter jurisdiction. They can hear cases involving federal law, constitutional issues, disputes between citizens of different states, and certain cases involving the United States as a party.
State Courts: State courts have broader subject matter jurisdiction. They can hear a wide range of cases, including those related to state law, contract disputes, family law, criminal cases, and more.
State and Federal Court Systems:
State Court System: Each state has its own court system, which typically includes trial courts, intermediate appellate courts, and a state supreme court. The structure and names of these courts may vary from state to state.
Federal Court System: The federal court system in the United States consists of district courts (trial courts), circuit courts of appeals (appellate courts), and the U.S. Supreme Court.
Trial and Appellate Courts:
Trial Courts: Trial courts are where legal disputes are initially heard. They conduct trials, consider evidence, and render decisions or judgments. There are both state and federal trial courts, such as state superior courts and U.S. district courts.
Appellate Courts: Appellate courts review decisions made by trial courts. These courts do not hold trials or receive new evidence. Instead, they review the legal procedures and decisions made by lower courts. In the federal system, these are the U.S. Courts of Appeals, and at the state level, they are often referred to as the Court of Appeals or the Supreme Court, depending on the state.
These are fundamental concepts in understanding the structure and jurisdiction of state and federal court systems. Keep in mind that specific details and processes can vary from one state to another and between state and federal systems.
In many American cities, both state and federal courthouses coexist, each with distinct jurisdictions, hearing cases that involve different laws, law enforcement agencies, and judicial procedures. The complex rules governing the procedures in these courts are referred to as civil procedure or criminal procedure and can be quite challenging to grasp, even for experienced legal professionals. As future business professionals, it is essential to have a general understanding of the boundaries that separate state and federal courts.
It's often overlooked that the United States comprises fifty-one distinct legal systems: one federal and fifty within each state. Within each legal system, there is a intricate interplay among the executive, legislative, and judicial branches of government, each anchored in a state constitution. Some state constitutions predate the federal Constitution, while others are more recent. For instance, the Massachusetts Constitution was ratified in 1780, seven years prior to the federal Constitution, whereas the Montana Constitution was adopted in 1972.
State constitutions can sometimes offer protections that go beyond those provided by the federal Constitution. For instance, certain state supreme courts have interpreted their state constitutions to prohibit discrimination against gays and lesbians in the context of marriage, citing the "equal protection" provisions. In other instances, state supreme courts have interpreted their state constitutions to grant citizens the right to determine the time and manner of their own death. These decisions, being the interpretations of state supreme courts based on state constitutions, are outside the purview of review or intervention by the federal Congress or federal courts.
This dynamic distribution of power between state and federal governments is a fundamental aspect of our republican system of government and is known as federalism.
To determine the appropriate court for a case, attorneys primarily consider the nature of the case, guided by subject matter jurisdiction rules that specify whether the case should be heard in federal or state court. Cases related to state laws are generally adjudicated in state courts. Many criminal laws fall under state jurisdiction, and these laws can significantly differ from one state to another. For instance, speed limits and definitions of serious crimes such as murder or manslaughter, along with possible defenses, vary between states. Matters involving domestic issues, like divorce and family law, are also typically addressed at the state level.
States exhibit notable distinctions in their approaches to marriage, with some making it easier to marry, as exemplified by Nevada. Furthermore, marriage definitions and laws related to same-sex marriage, child custody, and adoption are determined by individual states. Property and probate laws, encompassing the transfer of property, real estate, vehicle or watercraft ownership registration, and property disposition after death, are all subject to state-specific regulations. Contract laws are primarily enacted at the state level, with many states adopting a common law known as the Uniform Commercial Code (UCC). The field of tort law, which encompasses civil wrongs other than contract breaches, covers a broad spectrum of situations resulting in legal harm to individuals and businesses. Different states maintain varying degrees of friendliness toward tort claims, resulting in a patchwork of tort laws that companies must consider when conducting business across different states.
Although most individuals and businesses typically engage with state courts due to the wide range of subject areas regulated by state law, cases occasionally find their way into federal court. Federal court subject matter jurisdiction is typically limited to cases involving federal questions, which pertain to the federal Constitution or federal statutes. Cases concerning the interpretation of treaties in which the United States is a party also fall under federal court jurisdiction. Additionally, cases in which the United States is a party must be litigated in federal court. In matters of original jurisdiction, designated by the Constitution, disputes between states can be directly filed with the U.S. Supreme Court. For instance, ongoing disputes between Wyoming and Montana over the use of the Tongue and Powder rivers were litigated in the Supreme Court in 2005.
In certain instances, federal courts can have jurisdiction over cases involving state laws. These cases are known as diversity jurisdiction cases and typically arise when all plaintiffs in a civil case reside in different states from all the defendants, and the amount claimed by the plaintiffs exceeds seventy-five thousand dollars. Diversity jurisdiction cases provide an avenue for a party that anticipates an unfair trial in a jurisdiction where its opponent holds a "home court" advantage to request a more impartial forum, a process referred to as removal.
Both the federal and state court systems have a hierarchical structure composed of higher and lower courts. Figure 2.9, "State and Federal Court Systems," illustrates this hierarchy. The U.S. Supreme Court holds the highest authority in the country, and all courts are obligated to abide by precedents established by the U.S. Supreme Court through the doctrine of stare decisis. It is essential to note that if a matter is exclusively within the realm of state jurisdiction, such as a state court interpreting its own state's constitution, the U.S. Supreme Court lacks jurisdiction over that issue. In such cases, the state supreme court remains the highest authority on that particular issue.
Figure 2.9, "State and Federal Court Systems,"
The federal court system is illustrated on the left side of the diagram. Cases are initially filed in a U.S. District Court, which serves as the trial court in the federal system. The U.S. is divided into ninety-four judicial districts. Some states with lower populations have only one judicial district, while more populous states have multiple judicial districts. These districts are named based on their geographical locations, for instance, the federal court in Manhattan is referred to as the U.S. District Court for the Southern District of New York. The U.S. Department of Justice, acting as the prosecutor representing the federal government in both civil and criminal cases, allocates its attorneys across the ninety-four judicial districts, with each district headed by a U.S. attorney appointed directly by the President without Senate confirmation.
As a trial court, U.S. District Courts oversee civil and criminal trials. These trials can either be bench trials (decided solely by the judge) or jury trials. During the trial, witnesses are called to provide their testimonies, which are meticulously documented, word for word, in a trial record, including supporting documentation. If the losing party in the trial disagrees with the verdict, they have the automatic right to appeal their case to the U.S. Circuit Court of Appeals. The United States is divided into thirteen circuit courts of appeals, which are geographically distributed throughout the states. A party that loses an appeal at the circuit court level can file one more appeal to the U.S. Supreme Court for review. However, due to the very limited likelihood of the Supreme Court accepting such an appeal, the majority of federal litigation concludes at the U.S. circuit court level.
The state court system, depicted on the right side of the diagram, consists of trial courts of general jurisdiction in all fifty states, which handle most types of civil and criminal cases. These courts go by various names such as superior court, circuit court, or district court, with the exception of New York State, where trial courts are called supreme courts. In addition to these, there may be other courts at the state level with limited jurisdiction, including traffic court, juvenile court, family court, or small claims court. An increasing number of states are experimenting with specialized drug courts aimed at treating drug abuse as a health issue rather than a criminal one, particularly focusing on treatment rather than punishment for drug-related offenses. State judges can be appointed by the governor or elected by the public.
Like federal trial courts, state trial courts conduct trials, and most maintain a trial record for potential review by an appellate court. In thirty-nine states, a party that loses at the trial court level can file an appeal with an intermediate court of appeals. The remaining states, usually smaller in size, lack this intermediate level of appeal, and thus appeals are filed directly with the state supreme court. In states with an intermediate court of appeals, the losing party in the appeal can typically file one more appeal with the state supreme court, although the rules for such appeals vary between states, determining whether they are a matter of right or discretion. Finally, in certain cases involving a federal constitutional right, a party that loses at the state supreme court level can appeal to the U.S. Supreme Court for review. These cases generally involve criminal matters and relate to the application of the Constitution in criminal procedure, evidence collection, or punishment.
Whenever an appeal is filed, the trial record is transmitted to the appellate court for review. Appellate courts do not conduct new trials and cannot summon new witnesses or recall prior witnesses. The role of the trial court is to establish the facts of the case, including who did what, when, why, and how. Fact-finding is a crucial component of the judicial process, and substantial deference is given to the judgment of the fact finder (the trier of fact), which is usually the jury or, in the case of a bench trial, the judge. On appeal, the appellate judge is not allowed to substitute their interpretation of the facts for that of the trier of fact, even if they believe the trier of fact was mistaken. Thus, issues on appeal are limited to questions of law or legal errors. For instance, the appellate court may disagree with the trial judge's interpretation of the meaning of a law or with a ruling made by the trial judge concerning the admission or exclusion of evidence presented to the trier of fact.
Deference to the trier of fact, typically the trial court, plays a significant role in the appellate process, making it rare for appeals to succeed. Even if a litigant can convince a court of appeals that a legal error occurred, it does not guarantee an automatic victory in the case. In most instances, the most favorable outcome a litigant can expect is for the court of appeals to remand the case, sending it back to the trial court for reconsideration or possibly a new trial. This process is known as remand.
The concept of "home court advantage" justifying diversity jurisdiction still exists to some extent. However, it may have evolved with advancements in communication, travel, and legal practices. While physical distance between parties involved in a case is less of a barrier than in the past, diversity jurisdiction can still be relevant in cases where a party believes that local biases or other factors may hinder their chances of receiving a fair trial in state court.
States should retain the ability to grant more civil rights than the federal Constitution. This principle of federalism allows states to serve as laboratories for democracy, where they can experiment with different policies and provide additional protections for their citizens. Historical examples include states extending equal marriage rights to same-sex couples before federal legalization, as well as states enacting laws related to environmental protection, healthcare, and consumer rights that go beyond federal standards. This approach allows for diversity and adaptation to the specific needs and values of each state.
Stare decisis is essential in our common-law system because it provides stability, predictability, and consistency in the application of legal principles. It allows individuals and businesses to rely on established legal precedents when making decisions and planning their affairs. Without stare decisis, the law would be constantly subject to change, leading to uncertainty and confusion.
However, there are circumstances in which the Supreme Court should feel comfortable abandoning a prior precedent. One such circumstance is when a prior decision is based on flawed legal reasoning, fails to consider changing societal norms, or conflicts with fundamental constitutional principles. This applies regardless of whether one subscribes to judicial originalism or judicial activism. The key is to ensure that the decision to overturn precedent is well-justified and respects the core principles of the legal system. In cases of significant societal or legal changes, the Court may choose to overrule a precedent if it is necessary to uphold the Constitution and protect individual rights. The decision to overturn precedent should be made judiciously and with a thorough examination of the issues involved.
Engaging in this exercise can serve as a practical way to acclimate yourself to the study of law and the legal business environment. We extend our best wishes for your success in this course!
The Constitution of the United States safeguards judicial independence through various mechanisms. Firstly, federal judges are appointed for life, which ensures that they don't face the threat of removal or replacement based on their decisions, allowing them to make rulings based on the law rather than political pressure or popular sentiment. Furthermore, their salaries cannot be reduced while in office, protecting them from financial influence. Judges can only be removed through a formal impeachment process, involving the House of Representatives and the Senate, and is reserved for misconduct, ensuring a significant threshold for their removal. This independence is vital as it preserves the judiciary's ability to act as a check on the other branches of government, maintaining the separation of powers.
Whether judges have enough or too much independence can be a matter of debate. On one hand, a high degree of independence is essential to maintain the integrity of the judicial system and protect it from political interference. It allows judges to make impartial decisions and uphold the rule of law. However, some argue that this level of independence may lead to a lack of accountability, as judges are not directly accountable to the people. Striking a balance between preserving judicial independence and ensuring accountability is a challenge that continues to be discussed and refined in the legal and political sphere.
2.4.4 The Certiorari Process:
The Supreme Court's jurisdiction is primarily appellate, meaning it has the authority to hear and decide certain types of cases on appeal from lower courts. The Court has both original and appellate jurisdiction, but the vast majority of cases come to it on appeal. The types of cases selected for review by the Supreme Court generally fall into the following categories:
Cases involving federal law or the U.S. Constitution: The Court hears cases where there is a significant federal question, including issues of federal law or constitutional interpretation. This allows the Court to ensure uniformity in the interpretation of federal law throughout the country.
Cases involving lower federal courts: The Supreme Court may hear cases when different federal circuit courts of appeals have reached conflicting decisions on the same legal issue. This conflict among the lower courts, known as a circuit split, creates a need for the Supreme Court's resolution.
Cases involving significant legal or constitutional questions: The Court often selects cases that present important legal or constitutional issues with far-reaching implications for society. These cases may involve civil rights, liberties, or issues of national importance.
Cases with differing interpretations of state law: When a state's highest court interprets a state law differently from how other states might interpret a similar law, the Supreme Court may take up the case to resolve the disagreement.
Cases with public interest: The Court occasionally considers cases that have captured the public's attention or address issues of profound importance, even if there is no circuit split. This helps the Court respond to evolving societal needs.
When lower courts of appeal disagree with each other, it creates a situation known as a circuit split. This occurs when different federal circuit courts of appeals have issued conflicting decisions on the same legal issue. When a circuit split exists, it can lead to inconsistent application of the law across different regions of the country.
The Supreme Court may decide to hear a case with a circuit split because its role is to ensure uniformity in the interpretation and application of federal law. By resolving the conflict, the Court provides a consistent legal framework for the entire nation.
The Supreme Court's process for hearing and deciding a case generally involves the following steps:
Petition for Certiorari: To begin the process, a party seeking review (usually the petitioner) files a petition for writ of certiorari. This document requests that the Supreme Court review the case. The Court receives thousands of petitions each year but grants review in only a small percentage of cases.
Conference and Certiorari Pool: The justices review the petitions, and if four or more agree to hear a case, it is accepted for review. The Court has a certiorari pool of law clerks who help review and summarize the petitions to assist the justices in their decision-making process.
Oral Argument: Once the Court grants certiorari, the case proceeds to the oral argument stage. During oral argument, the parties' attorneys present their arguments, answer questions from the justices, and discuss legal issues in the case.
Deliberation and Decision: After oral arguments, the justices deliberate privately and cast their votes on the case. A majority opinion, written by one of the justices, is then issued, along with any concurring or dissenting opinions.
Issuance of Opinions: The Court typically releases its opinions on specific days, known as opinion days. The opinions are published and explain the Court's legal reasoning and conclusions.
Implementation of the Decision: Once the Supreme Court issues a decision, it is binding on lower courts and provides legal guidance for future cases.
This process ensures that the Court carefully considers each case and provides legal guidance that helps shape the law of the land.
The Supreme Court's jurisdiction is indeed discretionary, and the justices must decide which cases they want to hear. The process of petitioning for a writ of certiorari allows the Court to select cases of significant legal and national importance, given the vast number of petitions it receives.
Of the thousands of petitions filed with the Supreme Court each term, only a small fraction are granted certiorari. The types of cases that the Court typically grants certiorari for can be categorized into three main groups:
Cases of Tremendous National Importance: The Supreme Court is more likely to grant certiorari to cases that involve issues of paramount national importance. Examples of such cases include Bush v. Gore, where the Court decided the outcome of the 2000 presidential election, or landmark civil rights cases, such as Brown v. Board of Education.
Lower Court Misinterpretation of Precedent: The Court may take up cases when it believes that a lower court has incorrectly applied or misinterpreted a prior Supreme Court precedent. This ensures consistency in the interpretation of federal law and the Constitution.
Circuit Split: The largest category of cases granted by the Supreme Court involves circuit splits. A circuit split occurs when different federal circuit courts of appeals have issued conflicting decisions on the same legal issue. When there is such a split among the lower courts, it creates an inconsistency in the interpretation and application of federal law, prompting the Supreme Court to intervene and provide a uniform legal standard.
While the Court has a limited capacity to hear cases, its discretion allows it to focus on the most pressing and consequential legal issues facing the nation. This discretionary jurisdiction serves as a filter to ensure that the Supreme Court addresses cases that have the greatest impact on law and society.
In the United States, the federal court system consists of thirteen circuit courts of appeals, eleven of which are geographically distributed among the states, hearing cases from the district courts within their respective jurisdictions. Each circuit court covers a specific geographical region and is identified by a number. For instance, the Third Circuit Court of Appeals hears cases from federal district courts in Pennsylvania.
In addition to the eleven numbered circuit courts, there are two specialized courts of appeals situated in the District of Columbia:
U.S. Court of Appeals for the Federal Circuit: This specialized court mainly handles appeals related to intellectual property cases, particularly patent law. Decisions by the Federal Circuit on patent law set precedents for all district courts across the country, unless overruled by the Supreme Court.
U.S. Court of Appeals for the District of Columbia Circuit: Although it has a smaller geographical area compared to other circuits, this court is of great significance. It hears cases against the federal government and various federal agencies located in Washington, DC. Several Supreme Court Justices, including Chief Justice Roberts, Justices Scalia, Ginsburg, and Thomas, served on this court before their appointments to the Supreme Court.
A circuit split occurs when different circuit courts of appeals disagree with each other on the interpretation of federal law. This situation typically arises when two similar cases from different states are decided at the same time, and the respective circuit courts reach opposing conclusions about the interpretation of federal law. In this scenario, the Supreme Court is highly likely to grant certiorari to resolve the split and provide a uniform interpretation of the law for the entire country. This process ensures that the application of federal law remains consistent and avoids varying interpretations based on geographic location.
When a petition for a writ of certiorari is submitted to the Supreme Court, the party that emerged victorious in the lower appellate court, known as the respondent, is required to file an opposing response. These two essential documents undergo careful consideration by the justices during their weekly conferences, determining whether the case warrants further review. As previously mentioned, cases generally fall into one of three categories that may lead to their acceptance, while others are simply dismissed. The pivotal principle governing these discussions is the "rule of four," whereby only a minimum of four justices, representing a minority, need to concur in their desire to hear a case for the petition to be granted. Consequently, a significant majority of cases are dismissed, thereby upholding the decision made by the lower court.
Each Supreme Court justice is authorized to appoint up to four law clerks every term to aid in their judicial responsibilities. These law clerks typically hail from the nation's most prestigious law schools and are sought after for their exceptional legal acumen. Securing a clerkship is undoubtedly prestigious and is typically reserved for the brightest and most promising legal talents. Many justices heavily rely on their clerks to manage the extensive volume of submitted petitions, seeking their insights and recommendations regarding the granting of cases. This process, referred to as a "cert pool," involves the assigned clerk drafting a memo that is shared with all the justices. However, this arrangement has faced criticism for potentially bestowing substantial influence on relatively inexperienced lawyers. It's important to note that participation in the cert pool is voluntary, and not all justices opt to partake in this system. For instance, Justice Alito does not participate, as his clerks independently review all incoming petitions. Justice Stevens also refrained from engaging in the cert pool process until his retirement.
When a petition is granted, the involved parties are then directed to submit written briefs to the Court, presenting their arguments in favor of their respective positions. At this stage, the Court also extends the opportunity for nonparties to submit briefs, known as amicus briefs, aimed at informing and persuading the justices. These amicus briefs play a vital role in the judicial process, particularly in cases of profound significance that have far-reaching implications for a wide spectrum of citizens and organizations beyond the primary petitioner and respondent.
The amicus brief procedure serves as a crucial mechanism for ensuring that all those with a stake or interest in a case have the chance to voice their perspectives and concerns. For instance, in the context of the 2003 affirmative action cases involving the University of Michigan, a remarkable number of over sixty-five amicus briefs were submitted in support of the university's policies. These briefs represented a diverse range of entities, including MTV, General Motors, and retired military leaders, demonstrating the broad and inclusive nature of the amicus brief process in facilitating a well-rounded and comprehensive consideration of important legal issues.
The affirmative action cases involving the University of Michigan garnered widespread national interest due to the contentious practice of colleges and universities considering an applicant's race in their admission decisions. Ultimately, the Supreme Court rendered a verdict allowing the consideration of race as a factor in admissions, while cautioning against its use in strict numerical quotas. The Court's decision was informed by a multitude of amicus briefs that advocated in favor of the university's position, many of which were submitted by influential corporations.
Following their review of the case briefs, the justices proceed to engage in oral arguments, where both sides present their arguments in the main courtroom of the Supreme Court building. These oral arguments are allotted one hour and, although open to the public, are not televised. The press is granted special access to one side of the courtroom, where they are permitted to take handwritten notes, while the use of electronic devices is prohibited.
During the oral arguments, the justices focus their inquiries not on the repetition of facts already presented in the briefs but instead on delving into the vulnerabilities within the arguments and the potential consequences of a favorable ruling for either side. Typically, the justices hear two to three cases in a single day while the Court is in session. Before the commencement of each day's session, the court's marshal initiates proceedings with an invocation.
Following the oral arguments, the Supreme Court justices reconvene in a conference to deliberate on the case's verdict. Unlike the other branches of government, these deliberations are solitary affairs, with no assistants or clerks granted access. Once they arrive at a consensus regarding the favored side, they embark on the meticulous process of composing their legal opinions. These written opinions serve as the primary means through which the justices communicate their reasoning to the public and the legal community, underscoring the significance of thought and precision in the drafting process.
If the chief justice aligns with the prevailing side, they possess the authority to designate the justice responsible for crafting the majority opinion, which then assumes the status of the Court's official stance. The chief justice can strategically assign this task, sometimes choosing a justice known to be wavering or a potential swing vote to maintain the integrity of the majority's position. In situations where the chief justice finds themselves in the minority, the most senior justice among those in the majority is tasked with designating the author of the majority opinion.
Dissenting justices retain the prerogative to pen their dissenting opinions, motivated by the hope that their perspective may one day shape the law. Occasionally, a justice may concur with the case's outcome but dissent from the majority's reasoning, prompting the authoring of a concurring opinion. Once all the opinions have been meticulously drafted, the Court delivers its decision to the public. It is worth noting that, with very rare exceptions, all cases heard in a term are resolved within the same term, as the Court operates without accumulating a backlog of cases.
Televising Supreme Court Oral Arguments:
The debate over whether Supreme Court oral arguments should be televised is a matter of ongoing discussion. Proponents argue that televising the proceedings would enhance transparency, allowing the public to observe the highest court in action and gain a better understanding of the legal system. It could also serve as an educational tool and promote civic engagement. However, opponents express concerns about the potential for the proceedings to be sensationalized, taken out of context, or misconstrued for political purposes. Some justices have expressed reservations about the impact of cameras on the dynamics of oral arguments and decision-making. Ultimately, this is a matter of balancing transparency with the potential for unintended consequences, and any decision to televise Supreme Court oral arguments would require careful consideration.
Supreme Court as a Court of Last Resort vs. Accepting More Cases:
The Supreme Court's role as a court of last resort, with limited jurisdiction to hear a select number of cases, is fundamental to its function. This approach allows the Court to focus on the most significant legal issues, maintain consistency in the interpretation of the law, and avoid becoming overwhelmed with a vast caseload. However, the selection process for which cases to hear can be contentious, as it often involves deciding which legal matters of national or constitutional importance will receive attention.
In capital crime cases, the Supreme Court typically conducts a rigorous review process to ensure that justice is served. Capital punishment cases often involve complex legal issues, and the Court's careful consideration is essential to prevent wrongful convictions or excessive penalties.
The balance between serving as a court of last resort and accepting a larger number of cases is a matter of ongoing debate. Critics argue that the Court's limited docket can result in important legal issues going unaddressed, while proponents contend that it is necessary to preserve the Court's effectiveness and the quality of its decisions. Ultimately, the Supreme Court's role and its approach to case selection are matters that are subject to legal and constitutional principles and may require changes in the future based on societal and legal developments.
2.5.5 Concluding Thoughts:
As the smallest branch of government, with the briefest founding text in the Constitution among the three branches, the U.S. judiciary faced initial uncertainty and endured political interference during its early years. However, in recent decades, the judiciary has evolved into a mature, independent, and transparent institution, demonstrating remarkable resilience in the face of political turbulence and attacks. It is also a cost-effective pillar of government, especially when considering its pivotal role as the primary interpreter and guardian of the Constitution.
Despite these achievements, the judiciary continues to be a target of political assaults, persisting to this day. For instance, the notable Florida case involving Terri Schiavo, a patient in a permanent vegetative state, saw vehement attacks on the judges involved when her husband obtained judicial relief to cease life-sustaining medical measures. Judges have become the subject of vitriolic criticism when their decisions clash with certain political viewpoints. This toxic environment has prompted former Supreme Court Justice Sandra Day O'Connor to dedicate her post-Court retirement efforts to counter these attacks and infuse greater civility into the political discourse surrounding judges. While citizen frustration with the government is not a new phenomenon, the escalation of dangerous threats against the judiciary is an alarming and growing trend.
Chances are, you may go through your entire life without ever encountering a judge in person. However, if you do have the opportunity to interact with a judge, you will likely find them to be surprisingly human, honest, and, above all, committed to fairness. Given that the judiciary lacks a natural constituency, the collective responsibility for preserving and sustaining the success of this essential American institution falls upon all of us—citizens and corporations alike.
Discussion:
A Discussion Question should be answered in 2 to 3 paragraphs. and then respond to two of your peers with meaningful responses.
How does the Constitution guarantee judicial independence? Do you think judges have enough independence? Too much?
Article III says "that federal judges may hold positions during good behavior" and they are given lifetime appointments if they satisfy legal and ethical standards of the judicial office. That's not to say the potential to be influenced isn't there at all though. I think even though they do have a good amount of independence there's still always the threat of people trying to bribe them or politically motivated corruption because of the authority that judges hold. But too there's a major risk of being put in prison for getting caught with corruption too which I think helps keep judges on the right side of the law. Also when it comes to the judiciary system being too independent there's always a risk for self interest and corruption. But that's why every system needs checks and balances to prevent the abuse of power these systems face. Extreme independent judiciary could also lack judicial accountability. Since judges aren't required to give a complete accounting of decisions and the rational of them and are protected any against scrutiny and are protected against legal fallout from decisions. It's important that judges find a balance between accountability and independence which makes sure that justice is observed. We all know too how when our personal feelings affect us sometimes we can't help but let it affect our judgement and think of the pressure that judges face especially since they cover such a detailed amount of different areas not only moral but ethical and there's many different beliefs of how things should be handled. I know from my own experiences in life if I was met with a situation in which I had to make a decision and yet remain biased I don't know whether I would have enough sense to speak up and take myself out of that decision knowing I couldn't be biased. When looking at the possible abuse of power by judges often that's what catches them when it comes to personal attacks and trying to remain being biased in judgements. I know someone like me would have difficulty being a judge against such important matters. So I can see where it would be the same for judges they are held up to high standards and face many challenges even though they are shielded from things.
Through your readings under Unit 1 write an essay on a subject of interest. This would be something that was thought-provoking that you wanted to know more.
This will be in the form of an essay paper. The 1st page is the Title page, 2 FULL pages content, 12 pt. font, the last page will be a reference page for outside sources.
Unit 1 Essay
One of the most exciting topics I could
really come up with is we saw what happened during the 2008 crash that it was
related to the abuse of how mortgages and loans where used during that time
period. But anyone that has been following our current situation likely has
seen that we are coming to a point in which a crash could be likely. We have a
very high interest rate which is actually higher then what is being fought
since food and energy has been removed from the calculation of inflation
numbers. We just saw three banks fail and they are still in the process of
doing damage control while still adding more to the interest rates. But
meanwhile middle class is suffering higher costs in everything.
Even though we aren’t seeing the
loan practice’s taking place that took control of what caused the crash of 2008
we are seeing spending money which we don’t have which is causing inflation
giving money away to other countries, spending a lot of it on programs over the
past two years for covid sending military funds and missiles to Taiwan and
Ukraine. We see all those factors playing into inflation and the banking system
starting to fail in relation to the increase of the interest rates since instead
of banks holding money from the last bailout they bought treasury bonds which
are being crushed in value against the raise of interest rates. The fed is
trying to ease the rates to get inflation under control but aren’t even worried
about food and energy inflation which are the two really important keys of
inflation which the general consumer is affected by.
When I think about banking and the
bad practices it makes me refer back to what our own constitution says in
regards to this. It states at Article I, Section 10, Clause 1: “No State shall
enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and
Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver
Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of Contracts, or grant any Title of
Nobility.” That right there states that coins should be made out of gold or
silver when talking about money and we haven’t used a system which included
gold or silver since 1968 which we’ve already broken our own constitutional
laws and as a result we see the effect of inflation and our poor spending
habits being a repeating cycle in which we spend more then what we have until
inflation gets so bad that rates need to be increased and we need to force
people out of work to get inflation under control once again.
One would think after a while of
the same bad practices being used when it comes to banking and finance that we
would go back to what our forefathers created in an effort to bring back that
much needed value to the currency. But it seems more likely that Russia and
China which have been working towards a new gold and silver backed currency are
more likely to do it before the US is able to put that into the works. And with
that could create a new competition for world reserve currency if other
countries decide to stop accepting US dollars when they can gain more value
from the new Russian and China currency.
I always find it so interesting
when it comes to global economy and seeing the way that we often cause our own
downfall based on poor management of money policies that don’t work as well.
Looking at the great depression of 1929 we saw the placement of the Hawley
Smoot Tariff and a run on the banks because of lack of money supply. Which is
similar to the situation which they are currently trying to prevent from
happening. They are telling people your money’s safe and not to withdraw it
similar to 1929 when the stock market crashed and people rushed to try to pull
money from the banks causing a collapse.
The recovery for 1930 happened
when the price level started to recover and then as a result interest rates
started to fall and jobs opened such as factories here which allow people the
opportunity for more spending. The difference from that time and where we are
now being that all of those factories of producing different products are all
outsourced now we make very little amounts of things here in the US. And
because other countries still have running slave labor it’s not cost effective
for those businesses to be here. That kind of makes for a dangerous situation
from the above if US dollar stops getting accepted by the countries in which we
get most of our trade from because on top of not being able to get products it
would mean that if we do fall into a great depression without subsidizing new
industry for making things we would have a very challenging road ahead of us in
order to get to the point we could have a recovery.
But too we aren’t the only other
country that has gotten off using gold and silver as a standard way of trade
cause all of the other countries followed after 1971 in which all trade was
made to be done in US dollar only so if that is forced to change we would have
a major problem. But also other countries are also stuck in a similar boat by
not having gold standard since currencies are not backed by anything. It runs
the risk from an economics situation that any countries that side with China
and Russia might be more safe if they switch to that new form of money and it
also makes sense why other countries have been buying up those precious metals.
All we can really do is wait and see what happens but there’s certain people that say the banking system problem which also recently extended to Germany as well is a sign that the market crash could be happening within a 60-day period from that point and that it triggered certain indicators in the market that normally cause that type of catalyst with in the market. Something pretty interesting that a friend of mine found actually really makes me wonder whether some things might be proceeding based on existing information you can see below:
What I find
interesting about that chart is that it’s really not too far off when it comes
to the years and the bad times or panic times in which the market had drops.
But in closing I think we are
always not sure what will happen when it comes to the way the market is and
there’s many layers of effects that we see from a business law standard but
also from bad practices and ways we handle things within the government which
makes it unpredictable but it’s interesting learning about all the different
facts that go into situations in the past and we see we still make a lot of the
same mistakes.
Chapter 1 Quiz
Question 1
2 / 2 pts
Which of the following statements about administrative agencies is true?
They have broad discretion to conduct investigations.
They make rules that are deemed advisory opinions, not law.
x They create regulations that have the same legal force as legislation.
They are not allowed to adjudicate cases because they are not part of the judiciary branch of government.
Question 2
2 / 2 pts
Which of the following has original jurisdiction over cases involving disputes between two or more states?
U.S. Circuit Court
U.S. District Court
x U.S. Supreme Court
U.S. Intermediate Appellate Court
Question 3
2 / 2 pts
Federal bankruptcy courts have the authority to hear only bankruptcy cases. What is this kind of jurisdiction known as?
Appellate
Territorial
x Subject matter
UCC (Uniform Commercial Code)
Question 4
2 / 2 pts
After reviewing an administrative agency's regulation, a federal court ruled that the regulation was unlawful because it violated the United States Constitution. The federal court's ruling is an example of what type of law?
x Common law
Legislative law
Regulatory law
Civil law
Question 5
2 / 2 pts
The role of an appellate court is to do which of the following?
Conduct a new trial
x Review questions of law
Review the trial court's findings of fact.
Re-examine testimony by recalling witnesses
Question 6
2 / 2 pts
With respect to the federal court system, which level are cases typically filed at?
Supreme Court
U.S. Circuit Court
x U.S. District Court
Intermediate Appellate Courts
Question 7
2 / 2 pts
Which of the following is an example of primary law?
A legal treatise
A uniform code
x An executive order
A law review article
Question 8
2 / 2 pts
Carol lives in New Jersey. She formerly worked as a software engineer for a 3D printing lab, which is incorporated and based in Pennsylvania. Her former employer is attempting to sue Carol in federal court in Pennsylvania for breach of contract for stealing its trade secrets valued at $250,000. To meet the federal courts' diversity jurisdiction requirement, the employer must prove which of the following?
That the case involves federal law and that the parties are from different states
x That the parties are citizens of different states and the amount in controversy has been met.
That it is a foreign corporation duly authorized to conduct business in both Pennsylvania and New Jersey.
That it also has a principal place of business in Pennsylvania so that the citizenship requirement is met.
Question 9
2 / 2 pts
Which of the following statements about the Bill of Rights is true?
It grants police powers to the federal government under the Constitution.
It created the legislative branch of the United States government.
It established the dual system of government known as federalism.
x It provides certain Constitutional protections to United States citizens.
Question 10
2 / 2 pts
What branch of government drafts statutory law?
Judiciary
x Legislative
Executive
Administrative Agencies
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