Law and the Legal System

Law and the Legal System Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

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.”

Sources of Law • Primary Sources • Constitutions • Statutes • Regulations • Cases • Secondary Sources • Treatises • Law review articles • Reports • Legal encyclopedias

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”

Constitutional Law • 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 - 1983

Stautory Law • Federal • Congress – bicameral body • State • 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”

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

Administrative Law • State agency • Similar to federal • Ex. Georgia Administrative Procedure Act

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

Separation of Powers

Checks and Balances

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.”

Federalism

Federal Courts

Federal Courts • District Courts • 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

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

Supreme Court – Original Jurisdiction

Georgia Court System

Judges • All federal judges are appointed by the President and confirmed by the Senate • 87% of state judges are elected

Due Process • Procedural 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?

Marbury v. Madison (1803)

Marbury v. Madison (1803) • Established and justified the power of judicial review • Declared the Judiciary Act of 1801 unconstitutional

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

Law and the Legal System