INTRODUCTION TO LAW CHAPTER FIVE INSTITUTIONAL SOURCES OF AMERICAN LAW

INTRODUCTION TO LAW

CHAPTER FIVE

INSTITUTIONAL SOURCES OF AMERICAN LAW

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General

• Will discuss two general areas of law: Legislative power-ability of legislative bodies

to make laws and limits on that power Precedent how courts make decisions in the

absence of specific constitutional and legislative direction

• Important to know certain definitions

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Definitions

• Constitutional Law supreme law of nation, state or local government; does four things: 1) determines structure of government, 2) dictates how laws are made, 3) divides power with other levels of government, 4) grants basic rights

• Constitutional law has two purposes Source of legislative power and Limit on that power

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Definitions

• Constitutional law limits legislative power United States Constitution limits federal, state and local government, state constitution limits state and local government. charter limits local government

• Statutory Law laws passed by a legislative body in manner prescribed by applicable constitution (can be federal, state or local)

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Definitions

• Civil Law system of law in which statutory law is very detailed and dictates what must be done in most situations; following detailed forms and standards very important

• Common Law system of law where emphasis is on looking for guidance to what past courts did (precedent), also intent of parties more important than following form

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Definitions

• Unlike common law system, civil law system: Does not make use of precedent Does not use juries in non criminal cases Avoids complicated rules of evidence Places much emphasis on compliance with

applicable statutory law

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Determining Validity Of Legislative Power

• Courts are bodies which determine if legislative action is valid (constitutional) or invalid (unconstitutional)

• All legislation is presumed valid until court rules otherwise burden of proof is on challenging party

• Examine constitution closely as legislative restrictions may not apply to all levels of government

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Sources Of Legislative Power (Federal)

• U.S. Congress can only pass laws (exercise power) in those areas allowed by Constitution Article 1, Section 8 includes power to: raise

and maintain an army and navy; coin money; regulate interstate commerce etc.(called “enumerated powers”-all other powers go to states)

Necessary and proper clause Congress can pass laws needed to carry out its powers

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Sources Of Legislative Power (State)

• Two sources of state power to legislate 10th Amendment all powers not specifically

assigned to federal government (see Article I, Section 8) to go to states

Police power may pass such laws as necessary for health, safety and welfare of citizens

Limit can take no unconstitutional actions, see also Article I, Section 10

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Sources Of Legislative Power(Federal and State)

• Concurrent regulation States sometimes are allowed to pass laws in areas assigned to federal government; however federal government cannot pass laws in areas assigned to states

• Test to determine if concurrent regulation allowed examine 3 items: 1) Supremacy Clause; 2) U.S. Constitution and 3) area being regulated

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• Supremacy clause Art. IV. Sec. 2 when acting in areas assigned it by U.S. Constitution, laws passed by U.S. Congress displace conflicting state legislation, courts interpret this clause loosely, favor joint regulation

• Express provisions U.S. Constitution some provisions U.S. Constitution specifically bar states from passing laws regulating areas assigned federal government (see art. I, Sec. 10)

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• Area being regulated (when allowed) Test Is state able to regulate without interfering with

federal purpose? Is state able to regulate without retarding,

impeding or stymieing federal purpose? Is there a history of allowing concurrent

regulation in this area?

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• Federal courts determine if concurrent regulation should be allowed examine all three items

• Federal government (Congress) can pass laws which specifically displace concurrent regulation if it chooses (must be in area assigned fed. government by US Constitution)

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• Courts will try to find in favor of concurrent regulation (test) Subject matter being regulated Purpose of federal law Will concurrent regulation frustrate federal

purpose? Intent of U.S. Congress in passing law-does

federal legislative history indicate only federal regulation desired?

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Limits On Legislative Power(Ex Post Facto Laws)

• See U.S. Constitution Art. I, Sections 9 & 10 bans laws which: make criminal an act which was not when

committed; or impose a more serious punishment than existed

at time of commission; or make proof of guilt easier than when

committed.

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Limits On Legislative Power(Ex Post Facto Laws)

• Purpose to prevent legislative abuse• Only apply to penal or criminal statutes• Can act prospectively but not retroactively• Easing punishment or making proof of guilt

more difficult allowed retroactively• Look to legislative intent (close scrutiny)

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Limits On Legislative Power(Bill Of Attainder)

• Defined acts of a legislative body which apply to an individual or easily identified group and act in a manner which punishes without trial (see U.S. Constitution Art. I. Sections 9 and 10)

• Purpose Similar to that banning ex post facto laws-prevention of abuse of legislative power

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Sources/Limits Legislative Power (Statutory Construction)

• Defined Rights can be created or limited by court interpretation of constitutional provision or legislation

• When applicable Legislation appears to violate federal and/or

state constitution (or existing statutory law) Uncertain how constitutional provision applies to

specific situation; or Legislative language is unclear (if language

unambiguous no court action)

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• Application of constitutional provision does a constitutional right exist? if so, court will define what it is

• Does legislation conflict with constitutional provision, existing statute? Compare law which has been passed with constitutions, statutes (fed. state and local if applicable); can any conflicts be resolved?

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• Legislative language unclear-steps courts take Look to legislative intent as reflected in debates

surrounding passage Look at Congressional Record or similar

publications Keep in mind substantive due process could

result in law being stricken

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Sources/Limits Legislative Power (Administrative Agencies)

• Defined Legislatively created agencies charged with handling complex and detailed area (e.g. communications, aviation, sales of stocks and securities)

• Provided direction and power by “enabling legislation” spells out mission and grants authority to pass rules which have less force than statutory law but more force than common law

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Sources/Limits Legislative Power (Administrative Agencies)

• Limits on administrative agencies ability to make regulations Same restraints as legislative bodies (no

violations of constitutional law, cannot conflict with existing statutes, etc..)

Administrative Procedure Act (identifies process by which regulations must be made)

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Courts, Power To Make Law (Precedent)

• Defined policy whereby courts look to decisions of previous courts for guidance in handling matters (also known as doctrine of “stare decisis”)

• When used In absence of constitutional or statutory law;

OR When constitutional or statutory law unclear

(one is not certain how it applies)

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• How precedent operates (in establishing precedent higher courts decisions must be followed by lower courts) Federal law US Supreme Court binds US

Circuit Courts of Appeal which bind Federal District Courts

State law State Supreme binds state Court of Appeals which bind trial courts

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Mixed issues of federal and state law-Highest federal court binds (or if case confined to state courts highest state court sets precedent)

• For precedent to apply case being heard must be factually similar to case being suggested for use as precedent (Facts must be “on point” not “distinguishable”)

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• Precedent/Doctrine of stare decisis not always binding (courts can ignore or change precedent but risk reversal on appeal by doing so)

• When precedent can change To prevent unjust result Where outmoded and not in keeping with

societal norms (legislative action preferred method of altering precedent)

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Courts, Power To Make Law(Rule Of Case/ Rule Of Law)

• Rule of case factual situation in a given case (is the case similar to that being heard?)

• Rule of law principle for which a case stands (holding)

• Once rule of case is proven then rule of law will apply (if facts are similar precedent should apply)

• Case can have more than one holding

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Courts, Power To Make Law (Dictum)

• Defined Language in a court’s opinion that is not necessary to support the decision, side comments or remarks made by the court

• Dictum has no value as precedent but can be considered persuasive as opposed to binding

• Do not worry about this definition, courts often argue over what is dictum and what is precedent

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Courts, Power To Make Law (Applicability Of Court Decision)

• When does court decision take effect and to whom does it apply can be either

• Prospective binds parties, all pending cases (where final verdict has not been reached) and all future cases

• Retroactive binds all of the above and allows re-opening of previously decided cases (highly disfavored due to potential unfairness and likely disruption)

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• Test to determine if retroactive application should be allowed (civil) Has new principle of law been established? Would retroactive application help or hinder

that purpose? Will retroactivity cause hardship or unfairness?

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• Test to determine if retroactive application should be allowed (criminal) What is purpose to be served by new rule?

What does it seek to accomplish? To what degree did law enforcement officials

rely on the old rule? What effect will new rule have on

administration of justice?

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• Test to determine if retroactive application should be allowed (criminal) Give retroactive impact to any rule which will

aid truth finding function and/or raise questions about accuracy of a finding of guilty

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Courts, Power To Make Law(Absence Of Precedent)

• Defined Unique factual or other situation where past cases provide no guidance to the court hearing the matter

• In absence of precedent courts look to Laws of other jurisdictions (neighboring states,

major policy making states) Anglo-Saxon legal heritage Public policy (community sense of fairness as

determined by judge)

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Courts, Power To Make Law(Conflicts of Law)

• Defined-situation where law of more than one jurisdiction (state) could apply to case Usually arises where events connected to law suit took place in more than one state

• In conflicts cases court hearing case must decide what substantive law to use; forum court always uses its own procedural law

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• Modern approach is to use “significant relations” (also known as “center of gravity”) test

• Factors in contracts cases: 1) Where K was negotiated; 2) Where K was signed; 3) Where K was to be performed; 4) Subject matter of K and where located; 5) Intent of parties; 6) Residence of parties

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• Factors in tort cases: 1) Where parties reside; 2) Where actions which constituted tortious behavior took place; 3) Where final act that allows imposition of liability took place

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Courts, Power To Make Law(Limits-Full faith and credit; Comity)

• Concerns enforcement of foreign judgments (must person who won lawsuit in another state or country start entirely new lawsuit in order to collect that judgment?) Judgment creditor allowed to avoid trial de

novo if requisites of full faith and credit or comity are met

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• Full faith and credit applies between states, allows enforcement of judgments from other states (see U.S. Constitution Art. I, Sec. 4)

• Must enforce judgment from other states unless to do so would Violate federal or state constitutional rights; or Seriously offend public policy of enforcing

state

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• Comity applies to judgments from other countries, done as matter of international courtesy and to insure reciprocity

• Can enforce judgment from another nation unless doing so would offend public policy Ask if trial were fair, did it have safeguards

similar to those required for procedural due process?

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INTRODUCTION TO LAW CHAPTER FIVE INSTITUTIONAL SOURCES OF AMERICAN LAW