PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman Part II Chapter 5: Sources of American Law The Paralegal Professional ESSENTIALS, Second Edition

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  English common law  French and Spanish civil law  The U.S. Constitution  State constitutions  Federal and state statutes  Local ordinances  Administrative agency rules and regulations  Executive orders  Judicial decisions

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ “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 5 th ed.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Keeping the peace  Shaping moral standards  Promoting social justice  Maintaining the status quo  Facilitating orderly change  Facilitating planning  Providing a basis for compromise  Maximizing individual freedom

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Law responds to cultural, technological, economic, and social changes.  May be a delayed response.  General principles accommodate a variety of situations that cannot be specifically anticipated (“vague and variable”).  Unprecedented problems require fluidity and pliancy.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Natural law, based on morality and ethics.  Historical, based on traditions and customs.  Analytical, based on logic of the result, regardless of the means.  Sociological realists would use law to shape social behavior.  Command believes law derives from the ruler.  Critical legal studies bases law on fairness; believes laws are obstacles.  Law and economics sees market and economic concerns as central to law.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  English common law  Based on precedent, or judges’ decisions  Law courts  Laws, as established by ruling authority  Based upon form, not substance or merit  Limited to monetary damages  Chancery (Equity) courts  Expands damages to include actions or non-monetary relief  Based upon principles of fairness  Merchant courts  Handled commercial disputes

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Constitution of the United States  Supreme law of the land  Can render any non-conforming law (state or federal) unenforceable  Broad principles  Amendable  Set the structure of the government ▪ Legislative branch – Congress ▪ Executive branch – the President ▪ Judicial branch – the courts

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Anything not specifically enumerated as federal is reserved to the states.  State governments generally mirror the federal structure.  Treaties, agreements between sovereign nations, are part of the law.  Codified law (statutes)  Enacted by Congress (federal) or states  Organized, by topic, into codes  Local governing bodies pass ordinances

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Administrative agencies  Legislative and executive bodies that enforce the law  Promulgate their own law in the form of rules, regulations, and orders  Executive orders  Power expressly delegated to the President by Congress  Judicial decisions  Precedent, interpreting statutes as well as settling disputes  Reported, used to inform later decisions (stare decisis)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Federal over state, state over local  Constitution and treaties  Statutes  Regulations  Court decisions follow enacted law OR can invalidate it, if it is found to be in violation of a controlling authority (higher level of law).

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Hierarchical, with lower courts controlled by higher court decisions, typically:  Supreme court  Intermediate appellate court  Trial court  Promotes uniformity by adhering to previous decisions (similar facts produce similar results)  Can be modified by higher courts if change is warranted

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ “Without stare decisis, there would be no stability in our system of jurisprudence. Stare decisis channels the law. It erects lighthouses and lies the signals of safety. The ships of jurisprudence must follow that well-defined channel which, over the years, has been proved to be secure and worthy.” ▪ Flagiello v. Pennsylvania, 208 A.2d 193 (P. 1965)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Creates the structure of the government  Protects individual rights  May be amended to address change  Delegates certain powers to the federal government (federalism)  Enumerated powers authorize the federal government to deal with national and international issues

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Article I – establishes a bicameral legislative branch (House of Representatives and Senate)  Article II – establishes the electoral college and outlines the election of President and Vice President  Article III – establishes the Judicial branch in the Supreme Court and allows for the creation of other courts, as necessary

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  The judicial branch reviews the acts of the other branches in regards to the constitutionality of their actions.  The executive branch enters into treaties with the advice and consent of the Senate, and the president has veto power.  The legislature creates courts and determines their jurisdiction, and enacts statutes.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Art. VI, § 2 asserts the supremacy of the federal Constitution, treaties, federal laws, and regulations over state laws (pre-emption).  Art. I, § 8, cl. 3 grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes”  Frees up interstate commerce; creates a national market  Includes intrastate (local) commerce that affects interstate commerce

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  States retain the power to regulate intrastate and some interstate commerce that occurs within their borders (state police power).  States enact laws that protect or promote:  Public health  Public safety  Public morals  General welfare  Includes environmental, corporation, property, zoning, and domestic relations laws.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  The first ten amendments to the Constitution  Guarantees fundamental rights (not absolute)  Freedom of speech ▪ Fully protected speech (political speech) ▪ Limited protected speech (offensive, commercial) ▪ Unprotected speech (dangerous, fighting, defamatory, obscene speech, speech that incites the violent overthrow of the government and child pornography)  Freedom of religion ▪ Prohibits the establishment of a state religion ▪ Permits the exercise of any religion, free from government interference

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ  Due Process ▪ No person shall be deprived of life, liberty, or property without due process. ▪ Substantive (fundamental need to know what conduct is prohibited) ▪ Procedural (notice and an opportunity to be heard)  Equal protection ▪ Citizens are entitled to equal protection of the laws ▪ Prohibits discrimination between similarly situated people by the government ▪ Strict scrutiny categories (suspect class, such as race) ▪ Intermediate scrutiny (protected categories, such as gender) ▪ Rational basis (justifiable reason for distinguishing between similarly situated classes, not protected or suspect class)