SOURCES OF AMERICAN LAW

Law: A body of enforceable rules governing relationships and transactions between and among individuals and their society. U.S. law primarily takes the form of (1) constitutions setting forth the fundamental rights of persons living or working in the United States and a particular state, describing and empowering the various branches of government, and prescribing limitations on that power; (2) federal and state statutes and local ordinances; A given statute might be based on a uniform law (e.g., the Uniform Commercial Code) or on a model act (e.g., the Model Business Corporations Act). However, each legislature is free to depart from the uniform or model text as it sees fit.

(3) administrative rules and regulations promulgated by federal, state, and local regulatory agencies; and (4) common law, which is the body of judicial decisions interpreting and enforcing constitutional, statutory, or administrative law and governing those relationships and transactions that constitutional, statutory, and administrative law do not govern. ADMINISTRATIVE LAW: AN INTRODUCTION

Administrative Law: The body of rules, orders, and decisions issued by administrative agencies, such as the federal Securities and Exchange Commission or a states public utilities commission. Administrative Agencies: Agencies authorized by federal or state legislation to administer and enforce one or more statutes (e.g., the Internal Revenue Service). Executive Agencies: Agencies formed to assist the President or, at the state level, the Governor, in carrying out executive functions (e.g., the Federal Bureau of Investigation). Independent Regulatory Agencies: Agencies neither designed to aid nor directly accountable to the legislative or executive branches (e.g., the Federal Reserve System).

Enabling Legislation: One or more statutes creating an agency and specifying its purposes, functions, and powers. As a general rule, an agency lacks the power to act beyond the scope of its enabling legislation. ADMINISTRATIVE RULEMAKING

Rulemaking: The process of formulating new regulations. Federal agency rulemaking typically occurs as follows: Notice of Proposed Rulemaking: A proposed rule and some discussion of its rationale are published by the agency in the Federal Register. The notice invites public comment and notifies the public of the times and places of any hearings on the proposed rule. Comment Period: Following publication in the Federal Register, the agency must allow ample time for public comment. The agency need not respond to all comments, but it must respond to any significant comments that bear directly on the proposed rule by either modifying the proposed rule or explaining why the modification was not made. Final Rule: Once the final version of the rule is decided upon by the agency, it will be published first in the Federal Register and then compiled annually in the Code of Federal Regulations. ADMINISTRATIVE INVESTIGATION AND ENFORCEMENT

Investigation: Both as part of the rulemaking process and as part of the enforcement of the rules, agencies can inspect regulated entities facilities or business records. Enforcement: If an agency determines that an entity has violated one or more rules, the agency may take administrative action against the entity. When possible, the agency will seek the entitys voluntary compliance, thus avoiding the expense and inconvenience of full-blown judicial or quasi-judicial proceedings. Adjudication: If voluntary compliance is not forthcoming, the agency and the entity will appear before an administrative law judge (ALJ) who will conduct a quasi-judicial (or court-like) proceeding, the exact nature of which varies from agency to agency. The ALJ issues an initial order, which is subject to appeal to the agencys

governing board (e.g., the actual commissioners of the Federal Trade Commission). After disposing of any appeal, the agency issues a final order, which may be appealed to a designated court (e.g., the U.S. Court of Appeals for the D.C. Circuit). STARE DECISIS

Stare Decisis: The doctrine obliging judges to follow established precedent within a particular jurisdiction. Precedent: The authority afforded to a prior judicial decision by judges deciding subsequent disputes involving the same or similar facts and the same jurisdictions substantive law. Binding Authority: Any primary source of law a court must follow when deciding a dispute. This includes all constitutional provisions, statutes, treaties, regulations, or ordinances that govern the issue being decided, as well as prior court decisions that constitute controlling precedent in the courts jurisdiction. Persuasive Authority: Any primary or secondary source of law which a court may, but which the court is not bound to, rely upon for guidance in resolving a dispute. A prior judicial decision acts as binding precedent only when the subsequent court is applying the same law as the prior court; otherwise, the prior decision is only persuasive authority. LAW VS. EQUITY

From their origin during the reign of Henry II, in the late Eleventh Century, common-law courts were typically classified as either courts of law or courts of equity. Courts of Law were empowered only to award wronged parties money or other valuable compensation for their injuries or other losses. Courts of Equity, by contrast, were empowered to award any manner of non-monetary relief, such as ordering a person to do something (a.k.a. specific performance) or to cease doing something (a.k.a.

injunction). In most of the United States the courts of law and equity have merged. Nonetheless, American courts still recognize legal remedies and equitable remedies. Remedy: The means given to a party to enforce a right or to compensate for anothers violation of a right. EQUITABLE MAXIMS A partys right to receive equitable relief and a courts power to grant it depends upon the following: Whoever seeks equity must do equity; Where the equities favor both parties, the dispute must be decided according to the law; Whoever seeks equity must come to the court with clean hands; Equitable relief will be awarded only when there is no adequate remedy at law; Equity favors substance over form; and Whoever seeks equity must pursue the vindication of their rights vigilantly or risk having their claims barred. CLASSIFICATIONS OF LAW

Substantive law creates, defines, describes, regulates, restricts, suspends, and sometimes abolishes legal rights and obligations. Procedural law establishes and regulates the manner of enforcing or vindicating substantive legal rights. Civil law defines and enforces the duties or obligations of persons to one another. Criminal law, by contrast, defines and enforces the obligations of persons to society as a whole. Cyberlaw: A growing body of law dealing specifically with issues raised by cyberspace actions and transactions.

National Law: Written and unwritten laws governing rights and obligations within a particular country. International Law: Written and unwritten laws governing the relations between and among nations and between nations and the citizens of one or more other sovereign nations (e.g., the Geneva Convention on the Treatment of Prisoners of War, the Warsaw Convention on International Air Travel, the General Agreement on Tariffs and Trade). FEDERALISM & CHECKS AND BALANCES

Federal Government: A form of government where states form a union and the sovereign power is divided between the national government and the various states. Separation of Powers Our national government consists of three branches, each of which acts as a check on the others power: The Legislative Branch (Congress) may override the Presidents veto and define the Judiciarys jurisdiction and must confirm judicial and high-level Executive appointees; The Executive Branch (the President and executive agencies) may veto Congressional legislation and appoint federal judges; and The Judicial Branch (the Supreme Court and the lower federal courts) has the power to void Executive and Congressional acts if they are unconstitutional.

The Bill of Rights expressly reserves to the states all powers the Constitution, as amended, does not expressly grant the federal government. THE COMMERCE CLAUSE

Commerce Clause: Article I, Section 8 of the U.S. Constitution empowers Congress [t]o regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes. Since 1824, the Supreme Court has interpreted the Commerce Clause to permit Congress to regulate both

interstate commerce (i.e., commerce between two or more states) and intrastate commerce (i.e., commerce within a single state),

as long as the intrastate commerce at issue substantially affects interstate commerce. THE REGULATORY POWERS OF THE STATES

Police Powers: As part of their sovereign powers, states possess the power to regulate private activities in order to protect or promote public order, health, safety, morals, and general welfare. The Dormant Commerce Clause: When state regulations impinge on interstate commerce, courts must balance the states interest in the merits and purposes of the regulation against the burden that the regulation places on interstate commerce. Generally speaking, state laws enacted pursuant to the states police powers are presumed to be valid notwithstanding their effect on interstate commerce; however, if the state law substantially interferes with interstate commerce, it will most likely be held to violate the Commerce Clause (i.e., to be unconstitutional). THE SUPREMACY CLAUSE AND PREEMPTION

Federal constitutional and statutory law and treaties supersede their state counterparts due to the Supremacy Clause, Article VI, Section 2 of the U.S. Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Preemption: Federal law is said to preempt a conflicting state or local law,

regulation, or ordinance if federal law is so pervasive, comprehensive, or detailed that it leaves state and local law no room to supplement it, or federal law creates a federal regulatory agency that is empowered to enforce federal law. THE BILL OF RIGHTS The first ten amendments to the U.S. Constitution comprise the Bill of Rights a series of protections for individuals against various types of government action. The Bill of Rights, with certain notable exceptions, protects legal persons, such as corporations and sole proprietorships, as well as natural persons. The protections afforded by the Bill of Rights are only against action by the federal government. In order to extend the same protections against actions by state and local governments, the U.S. Supreme Court has incorporated the protections afforded by the Bill of Rights into the following language of the Fourteenth Amendment: . . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. THE BILL OF RIGHTS IN A NUTSHELL

Most significantly, for our purposes, the Bill of Rights: guarantees freedom of religion, speech, and the press, as well as the rights to peaceably assemble, and to petition the government [Amend. 1]; guarantees the right to keep and bear arms [Amend. 2]; prohibits unreasonable searches and seizures of persons or property [Amend. 4] and guarantees fair payment for property taken for public use [Amend. 5];

guarantees the rights to due process of law, including indictment by grand jury [Amend. 5], as well as the rights to a speedy and public (criminal) trial with the assistance of counsel and to cross-examine witnesses and to solicit favorable testimony [Amend. 6]; guarantees the right to trial by jury in both criminal cases [Amend. 6] and civil cases involving more than $20 [Amend. 7]; and prohibits excessive bails and fines, as well as cruel and unusual punishment [Amend. 8]. FREEDOM OF SPEECH

The First Amendment protects speech and similar forms of expression, including corporate political speech and symbolic speech, from excessive government restriction or regulation. Symbolic speech includes all forms of expressive conduct, including gestures, movements, and clothing.

Government may restrict commercial speech (i.e., advertising) as long as the restriction (1) promotes a substantial government interest, (2) directly advances said interest, and (3) is no more restrictive than necessary in order to achieve the substantial government interest.

Unprotected speech: Government may prohibit certain types of speech, for example: speech (i.e., slander) or writing (i.e., libel) that defames or harms the good reputation of another person, threatening or fighting words, and obscene or pornographic speech. ONLINE OBSCENITY

An increasingly significant constitutional issue is the extent to which the First

Amendments protection of free speech covers the content of web sites and messages transmitted over the Internet. In 1996, Congress passed the Communications Decency Act. Two years later, Congress passed the Child Online Protection Act. The U.S. Supreme Court found both acts to be unconstitutional. One approach employers, schools, and parents have taken to restrict their employees, students, and childrens access to inappropriate material is to use one or more types of filtering software. Childrens Internet Protection Act (CIPA): Federal law requiring public schools and libraries to block children from accessing adult content, based on the meta tags, or key words, appearing on the blocked site. In United States v. American Library Association (2003), the Supreme Court held that CIPA did not violate the First Amendment. FREEDOM OF RELIGION The First Amendment also provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . The establishment clause generally prohibits government from establishing a state-sponsored religion or passing laws that promote or show a significant preference for one religion over another, or that impose a significant burden on one or more religions. The free exercise clause generally prohibits government from compelling anyone to do something contrary to his religious beliefs or restricting anyones legitimate exercise of his religious beliefs, except where public policy or public welfare require government action.

The key to analyzing a federal or state law or regulation as it relates to these provisions is to focus on the primary effect of the law or regulation, not any secondary effect. As long as the law or regulation does not promote or place a significant burden on religion, it will not be deemed unconstitutional simply because it has some impact on religion. DUE PROCESS OF LAW

Procedural Due Process requires that any government decision to take life, liberty, or property must be made fairly, giving the persons from whom life, liberty, or property is to be taken prior notice and the opportunity to be heard by an

impartial decisionmaker. Substantive Due Process requires that the interest of the state to be served by any law or other governmental action be weighed against the right of the individuals against whom the law or action is directed. A fundamental right (e.g., free speech, interstate travel, privacy) will be protected unless the government can show a compelling state interest (e.g., public safety). In all other cases, a law or action will not violate substantive due process as long as it is rationally related to any legitimate governmental purpose. EQUAL PROTECTION

The Fourteenth and Fifth Amendments, respectively, prohibit any state or the federal government from denying any person within its jurisdiction the equal protection of the laws. Like substantive due process, the equal protection clauses require the substantive effect of a law or other government action be weighed against the right of the individuals against whom the law or action is directed. If the law or action inhibits a groups exercise of a fundamental right or if it embodies a classification based on a suspect trait (e.g., race, national origin), the law or action is subject to strict scrutiny, and will only be upheld if it serves a compelling state interest. If the law or action embodies a classification based on gender or legitimacy, it is subject to intermediate scrutiny, and will only be upheld if it is substantially related to important government objectives. If the law or action inhibits only rights related to economic or social welfare, it will be upheld so long as there is any rational basis on which the classification might relate to a legitimate government interest. PRIVACY RIGHTS

Despite the lack of any explicit right to privacy in the Bill of Rights, the courts have implied a fundamental right to personal privacy from the provisions of the First, Third, Fourth, Fifth, and Ninth Amendments.

In addition, Congress has passed a number of statutes protecting individual privacy, including the Freedom of Information Act, which affords individuals access to information collected about them by the federal government, and the Health Insurance Portability and Accountability Act (HIPAA), which requires health-care providers and health-care plans, including certain employer-sponsored plans, to inform patients/plan members of their privacy rights and to safeguard personal medical records from disclosure for non-health care purposes.

Congress has also passed legislation authorizing government encroachment into individual privacy most notably, The USA Patriot Act, enacted in 2001, which empowered government agencies to access and monitor electronic, financial, and other personal data and communication.