What is Law?
Laws are rules made by the government that tell people in a society how they should act. While every society has some type of law, it can take many different forms depending on the given society. Stable societies depend on government officials to enforce the laws and the citizens to obey them.
Laws and Values Laws generally reflect people's ideas about right and wrong. However, not everything that is immoral is illegal. Laws often change over time as a society's values change. One goal of the law in democratic societies is to respect the majority's wants while protecting the rights of those who have less of a voice in the system.
Human Rights Human rights are the rights that belong to people simply because they are human beings. Most countries have agreed to recognize and respect human rights by signing the Universal Declaration of Rights. The United Nations has developed a system of international treaties that protects specific human rights. Many countries also create laws aimed at protecting human rights. Our Constitution, Bill of Rights, and other state and federal laws are all influenced by a desire to protect human rights.
Balancing Rights with Responsibilities Americans enjoy many individual rights, but some people argue that these rights must be balanced with social responsibilities to foster a sense of community.
Kinds of Laws Law can be divided into two major categories: civil and criminal. Criminal laws regulate public conduct. In a criminal case, the government brings legal action against a person and imposes a penalty. Civil laws regulate relations between private individuals and may be enforced in a civil action by a private citizen (or group) who feels wronged. Sometimes the same act or wrong can be tried as both a civil and criminal case. However, criminal cases require a higher standard of evidence for conviction than civil cases, because the penalties are more severe.
Our Constitutional Framework The United States Constitution is the highest law in the United States and the longest lasting written constitution in the world. The United States Constitution sets forth guidelines for the organization of the government, lists the government's powers and limits, and outlines the freedoms of United States citizens. The Constitution also designates that the federal government's power must be divided among three branches, each with distinct roles and checks on the other branches' power. In addition to federal power being shared among the three branches, power is also divided between the federal and state governments. Each state has its own constitution, which organizes its government and sets out the rights of its people. These constitutions, like the federal Constitution, are difficult to change, but amendment processes exist and are used when necessary.
LawmakingLegislatures make laws in the United States. However, the executive and judicial branches of government also have a role in lawmaking. Sometimes, government agencies, appellate courts, and even voters themselves can act as lawmakers.
Legislatures Federal and state legislatures and local lawmaking bodies all have the power to pass laws. Federal law prevails when statutes conflict. Lawmaking bodies respond to the needs of citizens by introducing legislation in the form of bills. When bills are approved and passed by legislatures they become laws. If disputes arise regarding the meaning of laws, they may be resolved in court.
Agencies Legislative bodies usually write only general laws. Government agencies then develop rules and regulations that make laws more specific. Although rules made by government agencies become law without being voted on by lawmakers, the agencies themselves often hold public hearings before issuing proposed rules and regulations.
Courts Courts also make laws by establishing precedents. A person who loses a trial can sometimes ask a higher court to review and change the result of that trial. When an appellate court decides a case, its written opinion sets a precedent for similar cases in the future.
International Lawmaking In addition, international laws are established through treaties, or agreements between nations. Various international laws regulate international commerce, ownership of property, and other multinational issues. The United Nations, formed in 1945, maintains a system of international courts and has become the most important institution in the area of international law.
AdvocacyAdvocacy involves strategies aimed at influencing the creation and implementation of laws and policy. In addition to using their voting power, citizens in a democracy can organize to alert elected officials to problems in their communities, states, and country and work to promote solutions.
The Art of Advocacy Advocacy is the active support of a cause and the attempt to persuade others. Successful advocates must be organized, use effective methods of communication, and choose the appropriate level of government to which to address their particular issue.
Lobbying Lobbying is an attempt to influence the law by convincing lawmakers to vote a certain way. Lobbying is protected by the U.S. Constitution because it involves the right to free speech and other First Amendment protections. Anyone can be a lobbyist and try to convince lawmakers to vote for or against a particular issue. Some businesses and organizations hire professional lobbyists to advocate their positions. Some people are concerned that individuals and special interest groups use the lobbying process to buy the laws they want. However, others say that lobbying is an effective strategy for groups to make their voices heard.
Voting Voting is a basic constitutional right. In general, eligible citizens in a democracy elect representatives to act on their behalf when making and enforcing laws. However, some procedures allow voters to directly determine particular laws. An initiative allows voters to petition to propose a new law. A referendum allows voters to decide whether or not a proposed law should be passed. Some people believe that initiatives and referenda allow voters to be more involved in the democratic process. However, others fear that these tools are inefficient for a variety of reasons.To vote in the United States, you must be at least 18 years old, a U.S. citizen, and a resident of the district in which you want to register. Federal laws prohibit voting by non-eligible voters or registering in more than one district. It is also important for voters to be informed about the candidates and their positions in order to make wise decisions.Today, registering to vote is easy, but this was not always the case. In the past, African Americans, women, Native Americans, and people below the age of 21 were prevented from voting. In 1971, the Twenty-sixth Amendment to the Constitution lowered the official voting age from 21 to 18. In many states, people who have committed serious crimes are prevented from voting, even after release from jail. Many Americans who are eligible to vote do not register or participate in elections.
Campaign Finance Reform Some people believe that the process of raising money for campaigning must be reformed to limit the influence of money on politics. The goal of campaign finance reform is to prevent corruption in the election process. Campaign finance reform remains a complicated and controversial issue.
Chapter 4: Settling DisputesConflict can sometimes cause problems, but it can also be productive if handled in a responsible way. The goal of our legal system is to settle as many disputes as possible outside the courts. Going to court can be time-consuming and costly and often results in continuing tension between the parties.
Methods for Solving Disputes There are three common methods used to settle disputes outside of court—negotiation, arbitration, and mediation. Negotiation is the most informal. In negotiations, people involved in a dispute discuss their problems and try to reach an agreeable solution. Successful negotiating is an important skill that can help you in almost everything you do.Arbitration is a more formal process in which disputing sides agree to have a third person listen to their arguments and make a decision for them. In this case, the arbitrator acts like a judge by declaring a solution for the disputing parties. However, the arbitrator may have more flexibility than a judge in devising solutions to problems. Arbitration is a common method for settling contract and labor-management disputes.Mediation takes place when a third person, a mediator, helps the disputing parties talk about their problems. Unlike an arbitrator, a mediator does not impose a decision on the parties. Mediation is voluntary and is used to solve a variety of disputes. Some schools use mediators to help resolve conflict among students. Negotiation and mediation are based on the notion that the ideas for the solution must come from the conflicting parties. The parties then have a greater interest in making the solution work.
The Court SystemThe United States has a federal court system as well as state court systems. Tribal court systems exist to settle disputes on Native American reservations, while international courts deal with issues relating to international law and justice.
Trial Courts Trial courts listen to testimony from witnesses, consider evidence, and decide the facts in a dispute. In a trial, there are two parties, or sides. In a civil case, the party bringing the legal action is called the plaintiff. In a criminal trial, the government brings the case and is called the prosecutor. In both civil and criminal trials, the person who must respond to the complaint or charges is called the defendant. Defendants in both criminal and civil cases are guaranteed the right to have a jury hear and decide their case. Once the trial court has made a decision, the losing party may be able to appeal the decision to an appellate court.
Appeals Courts The losing party may ask an appeals court to review the decision made by the trial court. There are no witnesses or juries in appeals courts—the lawyers for each side appear before a group of judges to present the legal arguments. When an appeals court decides a case, it generally issues a ruling with a written opinion. This opinion sets a precedent for future cases, which means lower courts will have to follow the appellate court's interpretation of the law. This is how courts make law. However, a higher court, such as a state supreme court or the U.S. Supreme Court, has the power to reverse this precedent.
Federal and State Court Systems Many state court systems have the same structure as the federal court system. If you lose your case in a state trial court, you may be able to appeal to an intermediate court of appeals and possibly to the state supreme court. State courts can handle cases that deal with state and federal law. In contrast, the federal courts may only hear cases involving federal law or certain cases that involve parties from different states. If you lose a case in a federal district court, you can appeal to a U.S. Circuit Court of Appeals in your region. The court of final appeal is the U.S. Supreme Court.
Tribal Courts Native Americans have certain powers over their reservations, such as the power to regulate family relationships, tribal membership, and law and order on the reservation. Sometimes Congress allows, or delegates, additional authority to tribal courts.
The Supreme Court of the United States The U.S. Supreme Court establishes the most important legal precedents. All courts in the United States must follow U.S. Supreme Court decisions. There are nine Supreme Court justices. These justices are nominated by the president and confirmed with the advice and the consent of the Senate.
International Courts The United Nations established the International Court of Justice, the most important court that enforces international law. The International Criminal Court tries individuals for war crimes and other international crimes.
LawyersThere are more than one million lawyers in the United States. Many work in private practice, while others work for the government, corporations, and public interest organizations. Some lawyers are also law professors, judges, and elected officials. Contrary to popular belief, most lawyers rarely go to court. Their practice typically involves giving advice, drafting legal opinions, negotiating settlements, or providing other out-of-court legal assistance. Lawyers act as advocates for their clients and must represent their clients' interests to the best of their ability.
When Do You Need a Lawyer? Generally, the best time to seek a lawyer is before a problem occurs. Attorneys can offer advice to help their clients avoid problems or make important decisions. It is especially wise to consult a lawyer when a question of law is involved, if a legal document needs to be drafted, or if you are involved in a legal case.
How Do You Find a Lawyer? There are many resources available to help people find a lawyer to meet their needs. The best way to find an attorney may be to ask for a recommendation from someone who has had to deal with a similar legal issue. You can also look in the telephone book, use a local lawyer referral service, or consult the Martindale-Hubbell Law Directory, which provides general information about almost every lawyer in the United States. If you cannot afford an attorney, there are some options for you. You may qualify for free legal assistance, or—if your legal problem is of interest to a public interest organization—the organization may agree to take your case free of charge. Attorneys also take some cases on a contingency fee. This means that the attorney will receive a certain percentage of any money the client wins in the case. If the client does not win the case, the lawyer does not receive any money.
Working with Your Lawyer Trust is essential to the attorney-client relationship. The law grants attorney-client privilege to encourage clients to speak openly and honestly to their attorneys. This privilege prevents a lawyer from revealing the client's information without permission. Lawyers must also follow certain standards of conduct that are enforced by the state bar association. Clients can file a malpractice lawsuit against an attorney if they believe the attorney has acted irresponsibly and mishandled the case.
Introduction to Constitutional Law
Amendments to the Constitution The United States Constitution establishes our framework of government and the basic individual rights of Americans. Many Americans take these rights for granted because they do not realize that there are many other countries that do not provide their citizens with similar rights. An amendment is a written addition to the Constitution that must be proposed and accepted by Congress or a national convention. The Bill of Rights—the first ten amendments to the Constitution—refers to freedoms of speech, press, religion, and assembly and guarantees the right to a fair trial. Constitutional amendments demonstrate the evolution of American society and law.
Basic Constitutional Law Principles The U.S. Constitution provides American citizens with many invaluable rights. States also have constitutions and laws that protect individual rights. These rights are usually protected by limiting the power of the government. However, these rights are not without limits. For example, freedom of press does not mean that a journalist can knowingly publish information that is untrue. Restrictions on constitutional rights exist so that each citizen is able to enjoy his or her freedom without violating the freedom of another citizen. The Supreme Court has developed various tests to measure when the government has overstepped its constitutional limits.The U.S. Constitution protects primarily political and civil rights. Some people, however, believe that social and economic rights—such as the right to adequate health care and a decent standard of living—should be enforceable by the government. Others argue that while social and economic concerns can influence government policies, the government should not be legally responsible for guaranteeing these rights.
Freedom of SpeechThe Importance of Freedom of Speech First Amendment rights are the foundation of democracy in the United States. They help to create an open society in which people have the ability to share and discuss differing opinions and beliefs. In the United States, people's opinions and beliefs do not have to be the same as those of the government or the majority. Minority viewpoints are protected. There are times when the government can regulate the time, place, and manner of speech, but—generally—it cannot censor the content of protected expression.
Obscenity Obscenity is one form of personal expression that the government regulates. The Supreme Court determines a work to be obscene if sex is depicted in an offensive or illegal manner and the work lacks serious literary, artistic, political, or scientific merit. Definitions of obscenity can vary according to state law.
Defamation The First Amendment does not protect defamatory expression. Defamation is a false expression that damages another person's reputation. A person who intentionally spreads such false information can be held legally accountable. Defamatory speech that is spoken is called slander. Defamatory speech that is written is called libel.
Commercial Speech Most advertising is considered commercial speech. Commercial speech does receive some First Amendment protection. However, the government may restrict commercial speech that is false, misleading, or promotes a product, service, or conduct that is illegal.
Fighting Words, Offensive Speakers, and Hostile Audiences In order to maintain public peace and order, the government may have to decide between protecting a person's right to free speech and protecting the public from dangerous situations. The Constitution does not protect speech that encourages people to perform dangerous or illegal acts. Also, the First Amendment does not generally protect abusive language, called fighting words. Many people disagree over whether such speech should be censored and punishable by the law.
Time, Place, and Manner Restrictions While some laws regulate the content of people's expression, others regulate when, where, and how expression can be used. The government's power to regulate speech in public forums—such as a city street or park—is fairly limited.
Symbolic Speech Symbolic speech is a form of expression that conveys an idea without using words. The courts have guidelines to determine whether certain conduct should be protected under the First Amendment as symbolic speech.
Vagueness and Over inclusive Laws Due to the great importance of freedom of expression, laws regarding speech must be clear and understandable and must not prohibit any expression that should be protected.
Freedom of the PressThe First Amendment protects media publications such as radio, television, newspapers, and books from government censorship. Therefore, the government does not have the right to limit the publication, production, or use of any media simply because it finds it offensive. Freedom of the press raises many controversial and competing claims concerning where, when, how, and by whom this freedom is used in everyday life.
Prohibiting Publication Prior restraint is a term used to describe the censorship of a publication or production before its actual release. The courts generally find this kind of censorship unconstitutional. One exception would be when the publication or production would cause serious and irreversible harm, such as publishing confidential military plans. Any restriction on media productions must be reasonable and intended to prevent immediate harm in order to be constitutional.
Denying the Press Access to Information Many people believe that freedom of press includes the right to access information as well as the right to distribute it. The Freedom of Information Act (FOIA) grants the public access to certain government information and records. Government information and records are available to the public upon request as long as the records are not strictly confidential documents. Some states also have laws similar to the FOIA that provide citizens access to state agency files. Generally, the press has no greater freedom to access information than the public. Sometimes, in the interest of justice, a judge will impose a gag order that prevents the attorneys in a trial from discussing the case. Often, representatives of the media will challenge such a gag order in court. The judge will have to balance the interest in a fair trial against the right of the public and the press to information.
Requiring the Press to Disclose Information Reporters are often given confidential information for a news story. Sometimes, the sources of confidential information are needed for important purposes such as a court case. Journalists often are reluctant or unwilling to reveal confidential sources because they believe it betrays the source's trust or will make people unwilling to give information to the press in the future. Laws known as "shield" laws can protect a journalist from revealing the source of confidential information.
Expression in Special PlacesThe law recognizes only a limited right to exercise freedom of speech in schools and on military bases and prisons. First Amendment rights are granted in these special places as long as the expression does not interfere with the goals of the setting.
The First Amendment in Public Schools A public school can restrict or regulate forms of expression that are inconsistent with the school's educational mission. For example, a school could deny a student the right to give a speech that promotes gang violence. However, a principal cannot deny publication of an article that expresses an opinion that he or she merely does not like. Regulations must be reasonable and have an educational purpose. In some circumstances a student's clothing or certain style of appearance might also be restricted if it disrupts the learning process or promotes something incompatible with the school's educational atmosphere and mission.
The First Amendment in Prisons and the Military While freedom of expression can be somewhat limited in schools, people in prison and the military often face much greater First Amendment restrictions. Every aspect of a person's life is closely regulated in prison and on a military base. These people do not enjoy the same liberties and freedoms as those who live outside these institutions. In these two settings, many forms of expression can be restricted in the name of order and discipline.
Freedom of ReligionReligious freedom in the United States is protected by two First Amendment clauses. The establishment clause and the free exercise clause were created to ensure government neutrality toward religion. These clauses prohibit the government from showing preference for any one religion, demanding that a religion be practiced, or endorsing or imposing religious beliefs.
The Establishment Clause The establishment clause ensures the separation between church and state. Under the establishment clause, state and federal governments are forbidden to establish churches, promote any one religion, or show preference for one religion over another. Prayer in public schools and aid to parochial schools are two controversial topics involving the establishment clause.
The Free Exercise Clause Under the free exercise clause, every individual is entitled to his or her own religious beliefs. Although the government is unable to establish religious beliefs, it can sometimes regulate religious practices. Religious practices or actions can be reasonably restricted if they interfere with the important goals of government.
Due ProcessGenerally, the phrase due process refers to the concept of legal fairness. The Fifth and Fourteenth Amendments each contain clauses guaranteeing an individual's right to due process. The Fifth Amendment prohibits the federal government from denying citizens due process, and the Fourteenth Amendment prevents state governments from denying citizens due process. Over the years, the due process clause of the Fourteenth Amendment has proven important in securing the rights of many groups and preventing discrimination. Courts have interpreted the Fifth and Fourteenth Amendments to provide two types of due process—substantive due process and procedural due process.
Substantive Due Process Substantive due process protects every individual's fundamental liberties from government interference. This means that a government action or law must not affect a person's fundamental rights. In this way, the due process clause has been used to secure certain fundamental rights that are not spelled out in the Constitution. Opponents of this type of interpretation of the Constitution argue that these rights should not be read into the document by judges.
Procedural Due Process Procedural due process protects individuals from government action by requiring fair procedures before the government acts. When the stakes are the highest for the individual (such as in a capital punishment case), the government must follow particularly extensive procedures (trials with rules of evidence, appeals, etc.) to protect against error. When less is at stake, the required process can be much more limited. Due process in this case may be simple notice and the opportunity to state your position before the government takes action.
The Right to PrivacyDevelopment of the Right to Privacy The right to privacy protects citizens from unreasonable government interference. Though a person's right to privacy is not directly mentioned in the Constitution, it is implied by certain constitutional amendments. The government limits a person's privacy when justified by certain government interests. State laws and constitutions, as well as federal statutes and the U.S. Constitution, contain various privacy protections. Some people argue, though, that since privacy rights are not a part of the Constitution, they should not be recognized by the courts.
Privacy in the Home and at School Many people believe that a person's home deserves special privacy protection. While police need a valid search warrant to search a person's home, searches of students' lockers and desks at public schools are generally allowed by the government.
Information Gathering and Privacy Individuals have fewer privacy rights regarding their finances. Once notified and approved by the court, federal law allows federal agents to obtain copies of a person's bank or credit card records. At the same time, the government must provide its citizens with access to federal records that are not protected by a privacy law.
Reproductive Rights and Privacy Laws regarding abortion and reproductive rights have created controversy in the United States for many years. In the landmark case of Roe v. Wade (1973), the U.S. Supreme Court placed limits on the government's ability to regulate abortions. The abortion decision, based on the constitutional right to privacy, continues to be extremely controversial.
DiscriminationWhat Is Discrimination? Our legal traditions are rooted in part in a commitment to equality. Discrimination—treating some people differently because of their membership in a group—conflicts with this goal of equality. Not all types of discrimination are unfair or illegal, however. The process of making laws often requires separating people into categories. As long as these classifications are found by the courts to be reasonable, they are usually legal.Supreme Court rulings generally establish the minimum protections against discrimination that the U.S. Constitution requires. State constitutions, state laws, and local laws may extend greater protection against discrimination, as long as these protections do not infringe on other constitutional rights
.Discrimination Based on Race, National Origin, and Citizenship Most laws and government policies that discriminate based on race or national origin are unconstitutional unless they serve an important goal for society. For example, the Supreme Court has held that diversity is important enough in education to permit schools to show some preferences for minorities when evaluating applicants—a policy known as affirmative action. In some cases, discrimination regarding a person's citizenship status is acceptable (non-citizens are prohibited from voting), but in other situations it is unconstitutional (non-citizens cannot be prevented from becoming lawyers).
Discrimination Based on Gender and Sexual Orientation Courts generally will not uphold legislation or government action that favors one gender over another unless there is a good reason. Gay, lesbian, bisexual, and transgender persons usually do not enjoy the same legal protections as racial and ethnic minorities. While some state and local laws protect against discrimination based on sexual orientation, federal law does not include this protection. The Supreme Court has used its earlier privacy precedents, however, to extend legal protection to same-sex adults involved in consensual relationships.
Discrimination Based on Age and Disability In general, discrimination
Rights and Responsibilities in the WorkplaceLooking for a Job Various federal and state laws protect the rights of workers and people seeking jobs. An employer may not deny any individual a job strictly on the basis of age, race, ethnicity, gender, or disability. Employers may, however, ask about a person's employment history and criminal background and verify that a job applicant is a citizen or has authorization for employment. People between the ages of 12 and 14 may get a work permit for employment in some states, but they can be legally denied employment for legitimate concerns regarding maturity and experience.Privacy is a controversial issue in the job application process. Some believe that employers should not be able to administer drug, lie detector, personality, or psychological tests because they invade privacy and may be inaccurate. Others believe such tests are reasonable. By law, employers may not use tests that disfavor disabled persons, unless they are testing for skills that are essential to the job. On the job, employees' right to privacy can sometimes clash with an employer's need to supervise, monitor, and evaluate their performance and actions at work.
Conditions on the Job Federal and state laws have been established to protect both the employee and the employer. The Fair Labor Standards Act requires that most employers pay employees at least the federal minimum wage. While some states set their own minimum wage, employees are entitled to whichever wage is higher—the federal or state minimum. Certain jobs require that employees are compensated for overtime, and specific state laws regulate the weekly hours that a minor may work.Certain deductions are taken from people's paychecks. Money for federal taxes, state taxes, and Social Security—a federal program that provides workers and their families with monetary benefits if they retire, become disabled, or die—is taken out of each employee's paycheck. Employers may provide fringe benefits, such as health insurance, pension plans, sick leave, and vacation time, to employees for a certain fee or free of charge.A union is a group of workers that advocates and bargains with an employer for favorable working conditions on behalf of all workers in a particular profession. The Occupational Safety and Health Act (OSHA) sets standards for working conditions and safety regulations that all employers must follow.
Losing a Job Many factors can contribute to the loss of a job. People who are laid off—released from a job due to the company's financial trouble—may be entitled to extended fringe benefits or continued pay for a certain amount of time while they are looking for a job. Each state has a compensation system to assist the unemployed.