The Rule of Law – Law in a Changing Communiction Envrionment
“Both individuals and the whole of society benefit when people adopt a mutually acceptable system of rules to promote a balance between gain and loss, between cost and benefit and between personal desires and universal concerns. Aristotle called this balance the “golden mean.” Human interests are served and justice is achieved when a system of law applies equally and fairly to every indidvual-when people treat each other as they would like to be treated” (4).
Rule of Law = framework of a society in which pre-established norms and procedures provide for consistent, neutral decision making; 9 broad themes protected under rule of law: constraints on government powers, abscence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, criminal justice and informal justice.
Vague Laws = either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish.
Discretion = authority to determine the proper outcome; clear laws define in terms and detail their application in order to limit government officials discretion.
Overbroad Law = violates the principles of precision and specifity in legislation.
Stare Decisis = “stand by previous decision.”
Precedent = case judgment that establishes binding authority and guiding principles for cases too low on closely analogous questions of law within the court’s jurisdiction; the heart of common law although it’s not absolutely binding.
Jurisdiction = geographic or topical area of responsibility and authority of a court; every court has its own jurisdiction and may dismiss a lawsuit outside of its jurisdiction.
Forum Shopping = practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff’s favor. This practice was put to an end in 2013 by the U.S. Supreme Court.
United States court system has 3 tiers–
The lowest level being trial courts; the court where nearly all cases begin. Anyone who loses a case at trial may appeal the decision. Making the next level up in the tier, the Courts of Appeal. Courts of appeal generally do not make findings of fact or receive new evidence in the case (de novo).
De Novo = phrase meaning “new” or “over again.”
Courts of Appeal exams the procedures and tests used by the lower court ot determine whether the proper law was applied and whether the judicial process was fair and appropriate (due process).
Due Process = fair legal proceedings; guaranteed by the fifth and fourteenth amendments to the U.S. Constitution.
Appellate courts are based primarily on written legal arguments or short oral arguments; thus, parties not on the case (amicus curiae) may submit arguments (amicus brief) for consideration.
Amicus Curiae = “friends of the court”
Amicus Brief = submission to the court pertaining to parties in the case
Court systems have two levels of appellate courts: the intermediate courts of appeal and the supreme court. A panel of 3 judges hears all except the most important cases in the federal circuit courts of appeal. Only rarely do all the judges of the circuit court sit on the bench (en banc) to hear an appeal.
En Banc = “on the bench”
Courts of Appeal Decisions–
Affirm = to ratify, uphold or approve a lower court ruling.
Overrule = to reverse the ruling of a lower court.
Concurring Opinion = a separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles.
Dissenting Opinion = a separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority’s reasoning or the legal basis of the decision.
Remand = to send back to the lower court for further action.
U.S. Supreme Court–
The Supreme Court functions primarily as an appellate court. The Constitution establishes the courts original jurisdiction in a few specific areas.
Original Jurisdiction = authority to consider a case at its inception, as contracted with appellate jurisdiction.
Writ of Certiorari = petition for review by the Supreme Court of the United States; Certiotari means “to be informed of.” Writs are granted at the discretion of the Court; all nine justices must consider a writ, which is granted only if at least four justices vote to hear the case (this is called the Rule of 4).
Moot = a case in which the issues presented are no longer “live” or in which the matter in dispute has already been resolved; a case is not Moot if it is susceptible to repetition but evades review.
Supreme Court Decisions–
Per Curial Opinion = an unsigned opinion by the court as a whole.
Memorandum Order = an order announcing the vote of the Supreme Court without providing an opinion.
Judicial Review = The power of the courts to determine the meaning of the language of the Constitution and to assure that no laws violate constitutional dictates. The U.S. Supreme Court relies on a wide range of sources to guide its interpretation of the Constitution and its determination of the constitutionality of statues. Some being:
Originalists = Supreme Court justices who interpret the Constitution according to the perceived intent of its framers.
Textualists = Judges – in particular, Supreme Court justices – who rely exclusively on a careful reading of legal texts to determine the meaning of the law.
Sources of the Law–
Constitutional Law = set of laws that establish the nature, functions and limits of government. Statutory Law = written law formally enacted by city, county, state and federal legislative bodies. Black-Letter Law = formally enacted, written law that is available in legal reporters or other documents. Equity Law = law created by judges to apply general principles of ethics and fairness, rather than specific legal rules, to determine the proper remedy for legal harm. Common Law = unwritten, judge-made law consisting of rules and principles developed through custom and precedent. Doctrines = principles or theories of law (the doctrine of content neutrality). Administrative Law = the orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties. Executive Orders = orders from a government executive, such as the president, a governor or a mayor, that have the force of law. Political Questions = questions the courts will not review because they fall outside the jurisidiction of the court or are incapable of judicial resolution; an issue that can and should be handled by another ranch of government.
Laws are either civil or criminal.