Introduction to the Law Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University, Atlanta

Sources of Law Constitutional Law

Constitutional Law Federal (U.S.) Constitution With a “capital C” Provides framework for government Article I – Legislative Branch Article II – Executive Branch Article III – Judiciary Branch Provides for individual rights Bill of Rights (first 10 amendments)

Constitutional Law Article I – Legislative Branch

Constitutional Law Article II – Executive Branch

Constitutional Law Article III – Judiciary Branch Marbury v. Madison (1803)

Constitutional Law Bill of Rights Ratified 2 years after Constitution

Constitutional Law State Constitutions Provide framework for government 49 0f 50 states have bicameral legislature Vary greatly in length 8,419 words (Vt.) to 184,053 (La.) [6,400 (U.S.)] Can they address rights found in U.S. Constitution? Freedom of press Right of privacy penumbras

Sources of Law Constitutional Law Statutory Law

Statutory Law Congress Authorized by Constitution Senate and House of Representatives Authorized by Constitution Enumerated Powers Clause - Art. 1 Sec. 8 Authorizes Congress to collect taxes to coin money to establish a postal system to raise and support Armies to provide and maintain a Navy to regulate interstate commerce to protect the writings of authors and the discoveries of inventors

Statutory Law State Legislatures Mostly bicameral All but Nebraska Codification of common law

Sources of Law Constitutional Law Statutory Law Case Law

Case Law Federal Courts State Courts Supreme Court Circuit Courts of Appeal 11 geographic, plus D.C. and Federal circuits District Courts 94, at least 1 in each state State Courts 50 different systems

Sources of Law Constitutional Law Statutory Law Case Law Administrative Law

Administrative Law Federal Agencies Authority from Constitution Enabled by Congress Provide needed personpower and expertise Legislative, executive and judiciary power “Fourth Branch” – “We the People”? [How Do We Get Judges? Federal – all appointed by President and confirmed by Senate State – 87% elected by we the people Is that a good idea? Ex. Georgia – non-partisan elections Ex. New York – partisan election Ex. Missouri – hybrid “Missouri Plan”]

Administrative Law State Agencies Similar to federal

Sources of Law Constitutional Law Statutory Law Case Law Administrative Law Other

Other Proclamations Orders Treaties

The Law Evolves Laws must change as society changes Ex. Plessy v. Ferguson (1897) “Civil War” Amendments 14th Amendment Brown v. Board of Education (1954)

The Law Evolves Physician Assisted Suicide Right to refuse treatment Karen Anne Quinlan Living wills Dr. Kevorkian Oregon’s Death with Dignity Act (1994) Washington v. Glucksberg and Quill v. Vacco (1997) S. Court referred to Oregon and the “laboratory of the states” Washington (2009), Vermont (2013), California (2016), Montana, N.M.?

The Law (Usually) Makes Sense McDonald’s and the Hot Cup of Coffee

Federal Court System

Federal Court System (cont.)

Federal Court System (cont.) District Courts 94 courts (1 to 4 per state) original (or trial) jurisdiction only Courts of Appeal 11 geographically divided courts (plus 2 specialty courts) appellate jurisdiction only Supreme Court appellate and original jurisdiction

Supreme Court – Original Jurisdiction

Federal District Court Criminal Cases Civil Cases Federal Question Jurisdiction Diversity Jurisdiction complete diversity of the parties amount in controversy greater than $75,000

State Court Systems 50 different systems Similar to federal Georgia “triangular” in shape many courts with limited jurisdiction Georgia Supreme Court Court of Appeals Superior Court “highest of the low-level courts” Lots of low-level courts

Georgia Court System

Separation of Powers

Checks and Balances

Appeals Generally, questions of law are appealed, questions of fact are not U.S. Supreme Court Must petition for a writ of certiorari “Rule of Four” 8,000 requests per year 80 granted

Split in the Circuits

Burden of Proof Criminal case Civil case Ex. O.J. Simpson “beyond a reasonable doubt” burden on prosecution, i.e., state Civil case “by a preponderance of the evidence”, i.e., more likely than not burden on party making the claim, usually the plaintiff Ex. O.J. Simpson Hans Kraus Andrea Sneiderman

Motion for Summary Judgment Can be made by either party Made during discovery, i.e., after pleadings and before trial Will be granted if “there is no genuine issue as to any material fact and … the moving party is entitled to judgment as a matter of law” “Legal TKO”

Jurisdiction Original (trial) jurisdiction Appellate jurisdiction Subject matter jurisdiction “Does this court have jurisdiction to hear this kind of case?” Personal jurisdiction “Does this court have jurisdiction over the defendant?”

Personal Jurisdiction Physical presence in state International Shoe (1945) Required sufficient “minimum contacts” Such that jurisdiction would not offend “traditional notions of fair play and substantial justice” State “Long arm” statutes Transaction of business in the state Commission of a tortious act in the state Ownership of real property in the state [Compare to extradition – criminal law]

Personal Jurisdiction and the Internet CompuServe v. Patterson (1996) Jurisdiction proper – “purposeful availment” Bensusan Restaurant v. King (1997) No jurisdiction – tortious act requires physical presence Zippo Manuf. V. Zippo Dot Com (1997) Adopted “sliding scale” test with three points Clearly does business over Internet, e.g., CompuServe “Passive” Web sites, e.g., Bensusan Middle ground – must determine level of activity Today – eBay cases “single sale” doctrine

The Blue Note

Preemption If Congress is authorized to make law, and does so with the intent that it be the only law, that law will preempt any state law

Preemption Figure A Figure B Ex. FAA Ex. Patent Act Ex. Cipollone (1993) Ex. Silkwood (1984) Ex. Federal Anti-Spam Act