Chapter Overview

Sources of the Law:

There are five important sources of American law. The common law is the oldest source of our law, having developed in England more than 700 years ago. The law became common throughout Great Britain and reflected the customs of the people. It was easily transported to the New World, and its pragmatic philosophy was highly useful on the rapidly developing North American continent. Fundamental to the common law is the concept that judges should look to the past and follow earlier court rulings, called precedents. Stare decisis (let the decision stand) is a key concept. But judges have developed the means to change or adapt the common law by modifying, distinguishing or overruling precedent case law. The common law is not written down in a law book but is collected in volumes that contain the reports of legal decisions. Each case is given its own legal identity through a system of numbered citations.

Equity law, the second source of American law, developed because in some instances the common law was simply too rigid to fairly resolve the real grievances of British subjects. The rules and procedures of equity are far more flexible than those of the common law and permit a judge (equity cases are never heard before a jury) to fashion a solution to unique or unusual problems. A court is permitted under equity law to restrain an individual or a corporation or even a government from taking an action. Under the common law a court can only attempt to compensate the injured party for the damage that results from the action.

Today a great volume of American law is generated by Congress, legislatures, city and county councils, and myriad other legislative bodies. This legislation, called statutory law, is the third important source of American law. All criminal laws are statutes. Statutes usually deal with problems that affect great numbers of people, and statutes can anticipate problems, whereas the common law cannot. All statutes are collected in codes or statute books. Courts become involved in the development of statutes when they are called on to interpret the meaning of the words and phrases contained in a statute.

Constitutions, the fourth source of our law, take precedence over all other American law. The U.S. Constitution is the supreme law of the land. Other laws, whether they spring from common law, equity, legislative bodies, or administrative agencies, cannot conflict with the provisions of the Constitution. Courts are often called upon to interpret the meaning of the provisions of our constitutions (one federal and 50 state constitutions) and through this process can often make these seemingly rigid legal prescriptions adaptable to contemporary problems.

Executives such as presidents and governors can issue orders that carry the force of law. And there are thousands of administrative agencies, boards and commissions in the nation that produce rules and regulations. This administrative law usually deals with technical and complicated matters requiring levels of expertise that members of traditional legislative bodies do not normally possess. Members of these agencies and commissions are usually appointed by presidents or by governors or mayors, and the agencies are supervised and funded by legislative bodies. Their tasks are narrowly defined and their rulings, while they carry the force of law, can always be appealed.

The Judicial System:

There are 52 different judicial systems in the nation: one federal system, one for the District of Columbia, and one for each of the 50 states. Courts within each of these systems are divided into two general classes--trial courts and appellate courts. In any lawsuit both the facts and the law must be considered. The facts or the factual record is an account of what happened to prompt the dispute. The law is what should be done to resolve the dispute. Trial courts determine the facts in the case; then the judge applies the law. Appellate courts, using the factual record established by the trial court, determine whether the law was properly applied by the lower court and whether proper judicial procedures were followed. Trial courts exercise original jurisdiction almost exclusively; that is, they are the first courts to hear a case. Trial courts have very little discretion over which cases they will and will not hear. Appellate courts exercise appellate jurisdiction almost exclusively; that is, they review the work done by the lower courts when decisions are appealed. While the intermediate appellate courts (i.e., courts of appeals; the appellate division) have limited discretion in the selection of cases, the high courts (supreme courts) in the states and the nation generally have the power to select the cases they wish to review.

Federal courts include the Supreme Court of the United States, the U.S. Courts of Appeals, the U.S. District Courts, and several specialized tribunals. These courts have jurisdiction in all cases that involve the U.S. Constitution, U.S. law, and U.S. treaties; in disputes between citizens of different states; and in several less important instances. In each state there are trial-level courts and a court of last resort, usually called the supreme court. In about half the states there are intermediate appellate courts as well. State courts generally have jurisdiction in all disputes between citizens of their state that involve the state constitution or state law.

Judicial review is the power of a court to declare a statute, regulation or executive action to be a violation of the Constitution and thus invalid. Because the First Amendment to the U.S. Constitution guarantees the rights of freedom of speech and freedom of the press, all government actions that relate to the communication of ideas and information face potential scrutiny by the courts to determine their validity.

There are two basic kinds of lawsuits--civil suits and criminal prosecutions or actions. A civil suit is normally a dispute between two private parties in which the government offers its good offices (the courts) to resolve the dispute. The person who initiates the civil suit is called the plaintiff; the person at whom the suit is aimed is called the defendant. A plaintiff who wins a civil suit is normally awarded money damages.

A criminal case is normally an action in which the state brings charges against a private individual, who is called the defendant. A defendant who loses a criminal case can be assessed a fine, jailed or in extreme cases, executed. A jury can be used in both civil and criminal cases. The jury becomes the fact finder and renders a verdict in a case. But the judge issues the judgment in the case. In a civil suit a judge can reject any jury verdict and rule in exactly the opposite fashion, finding for either plaintiff or defendant if the judge feels the jury has made a serious error in judgment. Either side can appeal the judgment of the court. In a criminal case the judge can take the case away from the jury and order a dismissal, but nothing can be done about an acquittal, even an incredible acquittal. While a guilty defendant may appeal the judgment, the state is prohibited from appealing an acquittal.

As stated at the outset, this chapter is designed to provide a glimpse, only a glimpse, of both our legal system and our judicial system. The discussion is in no way comprehensive, but it provides enough information to make the remaining 15 chapters meaningful. This chapter is not intended to be a substitute for a good political science course in the legal process. Students of communications law are at a distinct disadvantage if they do not have some grasp of how the systems work and what their origins are.

The United States legal and judicial systems are old and tradition-bound. But they have worked fairly well for these last 213 years. In the final analysis the job of both the law and the men and women who administer it is to balance the competing interests of society. How this balancing act is undertaken comprises the remainder of this book. The process is not always easy, but it is usually interesting.