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Law and the Legal System
Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University
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The Law Evolves “The study of law is in essence the study of human beings, particularly their evolving customs, beliefs, and value systems.” “As our society evolves, so too does our law.”
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Sources of Law Primary Sources Constitutions Statutes Regulations
Cases Secondary Sources Treatises Law review articles Reports Legal encyclopedias
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Constitutional Law U.S Constitution
Provides a framework for the government Provides for rights and freedoms Short and general Constitutional interpretation “Living constitution” “Originalism” “Strict constructionism”
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Constitutional Law Massachusetts is the oldest – 1780
State Constitutions Provide a framework for the government Can provide for rights and freedoms, but . . Vary greatly in size U.S. Const. – 8,700 words Vermont – 8,300 words Average – 26,000 words Alabama – 172,000 words Massachusetts is the oldest – 1780 Georgia is the youngest
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Stautory Law Federal State Congress – bicameral body
Mostly bicameral – all but Nebraska Broader legislative powers than Congress All legislative powers – except those specifically enumerated to Congress – are reserved for the states General “police powers”
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Administrative Law Federal agency
Authority delegated to it by Congress Rulemaking power Must adhere to Administrative Procedure Act (APA) Proposed rules published in Federal Register Final rules published in Code of Federal Regulations (CFR) Adjudicatory power Administrative hearings presided over by Administrative Law Judge (ALJ) Executive power Enforcement e.g., OSHA inspections
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Administrative Law State agency Similar to federal
Ex. Georgia Administrative Procedure Act
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Case Law (Common Law) Court decisions have precedential value
Doctrine of stare decisis “to stand by things decided” Prior case decisions are accorded great deference and are not often overturned Provides for stability in the law, yet room for flexibility Legislative bodies can, in effect, “overturn” a decision by changing the law
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Separation of Powers
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Checks and Balances
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Federalism Article I, Section 8 of the U.S. Constitution specifically enumerates powers to Congress The 10th Amendment states that “the powers not delegated to the United States by the Constitution are reserved to the States respectively.”
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Federalism
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Federal Courts
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Federal Courts
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Federal Courts District Courts Courts of Appeal Supreme Court
94 courts (1 to 4 per state) original jurisdiction only Courts of Appeal 11 geographically divided courts (plus 2 specialty courts) appellate jurisdiction only Supreme Court appellate and original jurisdiction
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Supreme Court – Appellate Jurisdiction
Must petition for a writ of certiorari “Rule of four” Of about 8,000 petitions, only about 80 are granted each year
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Supreme Court – Original Jurisdiction
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Georgia Court System
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Judges All federal judges are appointed by the President and confirmed by the Senate 87% of state judges are elected
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Due Process Procedural due process Substantive due process
“How” does the process work? Is the process fair? Is there a right to a hearing? Substantive due process “Why” is there a law? Is the law fair? Does it serve a purpose?
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Marbury v. Madison (1803)
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Marbury v. Madison (1803) Established and justified the power of judicial review Declared the Judiciary Act of 1801 unconstitutional
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Standard of Review Ex. Equal Protection
Rational basis – a “good reason” The challenged statute must be rationally related to any legitimate government purpose Intermediate scrutiny – a “very, very good reason” The challenged statute must serve an important government objective and be substantially related to that objective Strict scrutiny – a “very, very, very good reason” The challenged statute must be necessary in order to achieve a compelling government interest
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