Overview of the U.S. Legal System Joel Teitelbaum, J.D., LL.M. Associate Professor of Health Policy and of Law Milken Institute School of Public Health & School of Law Director, Hirsh Health Law and Policy Program The George Washington University

The Function of Law To organize and control a sprawling, complex society To perform this role, the law: recognizes and creates legal rights establishes the institutions to define, refine, and enforce them Legal rights define specific relationships in society The importance of enforcement

Defining Law “Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law.” (Black’s Law Dictionary) This definition necessarily envisions a process by which the rules are created, disseminated, applied, interpreted, violated, enforced, disputed, revised, etc. In other words, a legal system.

The Legal System (4 elements) Types of laws and their specific purposes Legal process The legal profession Law as language

The Legal System (cont.) 1) Types of laws and their specific purposes Constitutions Statutes Regulations Judicial decisions (i.e., common law)

The Legal System (cont.) 2) Legal Process Branches of Government/Separation of Powers (Legislative, Executive, Judicial) Federalism Politics & Pace The economics of legal process

Separation of Powers Legislative Branch Taxing Spending Interstate commerce Enforcement by appropriate legislation of certain constitutional Amendments (e.g., Thirteenth, Fourteenth & Fifteenth, which were adopted during the Reconstruction period primarily to abolish slavery and protect the rights of the newly emancipated African-Americans)

Separation of Powers (cont.) Executive Branch Administrative law Rules & regulations Notice & comment “Coloring in the lines” but staying within intent of statutes

Separation of Powers (cont.) Judicial branch Technically, courts only interpret existing law. But: Interpretation implies understanding a writer’s meaning, and most of the issues that a court takes up cannot be resolved by interpretation because legal drafters cannot foresee all issues that will arise (e.g., electronic surveillance, gerrymandering, flag-burning, corporate donations to political candidates). Thus, when judges are not interpreting, they’re creating. And creating based on what?

Separation of Powers (cont.) Judicial branch (cont.) “Priors”: Those things we bring to a new question before we’ve had a chance to research it, such as attitudes, upbringing, personal and career experience, religious views, cultural norms, ideology, politics, etc. Additionally, courts effectively “make” law when they (a) overturn a law or (b) shape existing law by “judicial gloss.”

Separation of Powers (cont.) Judicial branch (cont.) Justice Ruth Bader Ginsburg, when asked about the public’s influence over Supreme Court decisions: “The Court is not and should not be affected by the weather of the day, but it should be affected by the climate of the year.”

The Legal System (cont.) 3) The legal profession 4) Law as language