Chapter 1 Sources of the Law Law set of rules that attempt to guide human conduct and a set of formal governmental sanctions that are applied when those rules are violated US state Constitution s common law law of equity statutory law ruling of various executives Major Sources Common Law Called common law to distinguish it from the church law at the time Inductive system is which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts Stare Decises Latin Let the decision stand judge should resolve current problems in same manner as similar problems were resolved in the past The Role of Precedent Lawrence v Texan Court can overrule a precedent only when there are changes in factual knowledge and circumstances social mores and values judges justices on the court overrule 1986 Bowers v Hardwick that had upheld a Georgia anti sodomy statute prohibiting certain sexual acts between consenting gay adults more accepting of gays 6 out of 9 judges had changed on supreme court since 1986 2003 changes in social values Citizens United v Federal Elections Commission overruled 1990 opinion called Austin v Michigan State banning corporations from spending money from their own treasury funds in order to create their own ads in support of any candidate in elections for state office Finding Common Law Cases British Term Reports first attempt at recording decisions case reporter cases of single court are collected here citation identification number Each case collected has its own citation which reflects the name of the reporter in which the case can be found volume of reporter page on which case begins courts are now available via online services LexisNexis Westlaw with correct citation you can easily find any case you seek Equity Law Another kind of judge made law Rule procedures are much more flexible than those under common law Equity suits are never tried before a jury Rulings come in form of judicial decrees not in judgements of yes or no Judges are free to do what they think is right and fair in a specific case equity allows judge to issue orders that can be preventative or remedial compelling a party to stop doing something it currently is doing Usually court orders a temporary restraining order TRO to preliminary injunction until it can hear arguments from both parties and decide if it should be permanent 2012 judge in GA issued TRO stopping the release of crime scene photographs depicting the nude and decapitated body of Meredith Emerson who was killed hiking in 2008 Family requested and was granted TRO Equitable remedy a restraining order or injunction A party seeks this if there is a real threat of direct immediate and irreparable injury for which monetary damages won t provide sufficient compensation Statutory Law Created by elected legislative bodies at local state and federal levels Statutes tend to deal with problems affecting society or large groups of people Can anticipate problems Criminal laws in the US are all statutory laws common law crimes no longer Common law deals with smaller individual problems Common law cannot exist in this country Common law is collected in reports Collected in codes and law books Statutory Construction resulting process of judicial interpretation Constitutional Law Constitution provide the plan for the establishment and organization of the even the simplest kind of statement often needs interpretation government Also outline the duties responsibilities and powers of the various elements of government Usually guarantee certain basic rights to the people such as freedom of speech and freedom to peaceably assemble Difficult to change or adopt a constitution Amendment may be proposed by a vote of 2 3s of US House of Even more difficult to change a federal Constitution Representatives and Senate 2 3s of state legislatures can call for constitutional convention for proposing amendments Once proposed amendments must be approved by either 3 4ths of state legislatures constitutional conventions called in all the states Constitutions are considered the most important source of US law The US Constitution is the supreme law of the land Tend to be short and infrequently amended Changes in the language of a constitution are uncommon 27 amendments are appended to the US Constitution State constitutions can give more and greater rights to their citizens than are provided under the US Constitution they cannot however reduce or roll back rights given by the federal Constitutions First 10 Bill of Rights basic human rights Void for Vaugeness Doctrine a criminal obscenity statute or another kind of criminal law might be declared unconstitutional and struck down if it is too vague a law will be struck down if a person of reasonable and ordinary intelligence would not be able to tell from looking at its terms what speech is allowed and what speech is prohibited Problematic because don t provide fair notice of what speech is permitted can be enforced unfairly and discriminatorily because they give too much discretion to those who enforce them Statute may be declared unconstitutional because it violates what is known as the over breadth doctrine a law is overboard if it does not aim only at problems within the allowable area of legitimate government control but also sweeps within its ambit or scope other activities that constitute an exercise of protected expression Executive Orders and Administrative Rules Final Source of american law has 2 streams Government executives have more or less power to issue rules of law Orders issued by elected officers of government executive orders rules generated by the administrative agencies of government executive orders declarations defined by constitution or charter that establishes the office an order from an executive who exceeds his or her power can be overturned by the legislature or by a court overstepping by a president would violate the separation of powers among the legislative judicial and executive branches of the gov For media law the most relevant administrative agency is the Federal Communications Commission FCC created by congress in 1934 and the Federal Trade commission FTC regulates broadcasting and other telecommunication in the US members must be citizens of theUS and are appointed by the president at any one time no more than 3 of 5 individuals on the commission can be from the same political party Senate must confirm appointments Communications Act of 1934 FCC has
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