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. . . it now costs a lot to get elected, and people with money can distort elections. ln response, the federal government adopts campaign finance laws that
limit contributons to and spending by political candidates. The laws try to
establish a balance between the right of individuals and groups to support candidates and the need to protect the integrity of elections from corruption. Big
money challenges the campaign finance laws in court. ln 1990 and 2003,2 the u.5.
Supreme Court upholds both state and federal restrictions on campaign funding
by corporations and provides eloquent support for the need to regulate election spending. Then, in 2007, the court finds a federal3 ban on certain political
advertisements unconstitutional. Writing in dissent, Justice David Souter argues
that the Court's decision rejected more than a century of well-established law
supporting limits on campaign spending and political advocacy' He writes, "The
court (and, I think, the country) loses when important precedent is overruled
without good reason."a
ln the lead-up to the 2008 presidential election, a federal district court relied
heavily on Supreme Court precedent to uphold campaign finance law and prohibit
a nonprofit organization called Citizens United from running advertisements and
airing a film about then-Sen. Hillary Clinton.s When appealed to the Supreme Court,
one question posed by Citizens lJnited v. Federal Election Commission was whether
precedent bound the Court's ruling. ln this chapter and the case excerpts that follow, we explore how the rule of law remains stable and how it changes.
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The Rule
According to Aristotle
Aristotle wrote a foundational work on
human ethics. ln his Nicomachean Ethics, Aristotle
observed that "justice exists only between men whose
mutual relations are governed by law, and law exists
for men between whom there is injustice." ln other
words, humans are inherently flawed and prone to
injustice, prejudice and caprice. However, people
also have a drive to improve the human condition.
As a result, humans can and will freely adopt legal
rules and ethical principles to govern their behavior,
ln 350
of Law
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of the law. But precedent is not absolutely binding; it is not always followed; and sometimes prec-
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[aw's] DNA."7
Laws are not inflexible. Even the U.S. Constitution-the foundational contract between the
U.S. government and the citizens-can be changed
through amendment. Other laws-the regulations,
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SU
ARY
Tnouex rHE RULE oF LAW, citizens establish a system for dealing with the innate
human tendency toward injustice. The rule of law is designed to promote justice
and to provide a relatively clear, neutral and stable mechanism for resolving conflicts. Legal rules bind both government and citizens by defining the boundaries
of acceptable behavior, establishing the power and range of punishment, and dictating procedures for creating, applying, interpreting and changing the law. \ellcrafted laws are clear and well tailored to address identified harms or advance
particular government or societal interests. Built-in procedures discourage rapid
revolutionary change in the law while permitting legal flexibility in response to
evolving needs and concerns. t
Jurisdiction
An independent courts system operates in each of the states, the District of
Columbia and the federal government. The military and the U.S. territories, such
as Puerto Rico, also have separate court systems.
Each of these systems of courts operates under the authority of the relevant
constitution. For example, the U.S. Constitution requires the establishment of
the Supreme Court of the United States and authorizes Congress to establish
other courts it deems necessary to the proper functioning of the federal judiciary.
Jurisdiction refers to a court's authofity to hear a case. Every court has its own
jurisdiction-that is, its own geographic or topical area of responsibility and
aurhority. In libel, for example, the traditional standard has been that any court
in any locale where the statement in question could be seen or heard would have
jurisdiction.e
Article III, Section 1, of the U.S. Constitution spells out the areas of authority of the federal courts. \ithin their geographic regions, federal courts exercise authority over cases that relate to interstate or international controversies
A Test
Disputes
jurisdiction, the answer to all three of
the following questions should be yes.
To establish
1. Did
in which to pursue online disputes. A court may dismiss a lawsuit because it lacks
jurisdiction.
Trial Courts
The separate court systems in the United States are organized similarly; most
court systems have three tiers. Trial courts occupy the lowest level of courts. They
are the only courts to use juries, and they are the courts where nearly all cases
begin. Trial courts reach decisions by applying existing law to the specific facts
of the case before them. They do not establish precedents. Each state contains
ar leasr one of the nation's 94 trial-level federal courts, which are called district
courts. News reporters routinely cover legal actions taking place in trial courts,
and some judges view media coverage as a threat to the fairness of trials (see
Chapter 10). Some judges also fear media coverage will cast their court in disrepute and reduce public trust in the judicial system.
9
Coast, Hawaii and Alaska, and the U.S. Court of Appeals for the D.C. Circuit
covers the District of Columbia. The 13th circuit, the U.S. Court of Appeals for
the Federal Circuit, handles specialized appeals. In addition, separate, specialized
federal courts handle cases dealing with the armed forces, international trade, or
veterans' claims, among other things.
Courts of appeal may affirm the decision of the lower court with a majority
opinion, which means they ratify or uphold the prior ruling and leave it intact.
They may also overrule the lower court, reversing the previous decision. Any
single judge or minority of the court may write a concurring opinion that agrees
with the result reached in the majority opinion but that relies on different reasoning or legal principles or elaborates on significant issues not treated fully by the
majority. \Vhen a judge disagrees with the opinion of the court, the judge may
wrire a dissenting opinion, explaining the basis for the divergent conclusion. A
dissenting opinion may challenge the majority's reasoning or the legal basis for
its conclusion.
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Conservative Leanings
Four of the five most conservative justices to serve on the Supreme ourt since 1937 and the presidency of Franklin D. Roosevelt are sitting on the bench today, according to a recent statistical study by Judge Richard Posner
and law professor William Landes.l Clarence Thomas, appointed to the Court in 1991 and the Court's second
African American justice, is ranked by the study as the most conservative justice of the past 70 years. Republican
appointees Chief Justice John Roberts (ranked 4th) and Justice Samuel Alito (ranked 5th) join Justices Antonin
Scalia (ranked 3rd) and Anthony Kennedy (ranked 1oth) to build the conservative majority of the current Court.
Democratic appointees Justices Ruth Bader Ginsburg and Stephen Breyer are the only sitting justices joining the
ranks of the 1 5 least conservative justices.
Justices Sonia Sotomayor and Elena Kagan were not members of the Court at the time of the study. However,
in her first year on the Supreme Court bench, Justice Sotamayor was perceived to be "a reliable liberal vote" but
not necessarily a "liberal activist."2 Justice Kagan is viewed by some as a "free speech devotee" who joins the
conservatives in her dedication to "the importance of civil liberties as a bulwark against ideological orthodoxy.":
(2009).
1 . William M. Landes & Richard A. Posner, Rational Judical Behavior: A Statistical Study, 1:2 J. or Lecr. Arvsrs 775
2. DavidSavage, Sotomaycr.VotesReliablywithsupremeCourt'sLiberal Wing,L.A.Tttnrs,June8,20'10, available athttp;/l
16595.story.
www.latimes.com/newlnationworld/nation/la-na-court-sotomayor-20100609,0,51
Has Sympathized with Consevative Justice, N.Y. Trnnes, May 16, 2010, at 419.
justices tend
ensur-
ing individual liberties. They also tend to support regulation of large businesses
and corporations and to reduce emphasis on property rights. Justice Ruth Bader
Ginsburg is sometimes viewed as the Court's only liberal-leaning moderate, but
her votng patterns place her in the political center of the Court, along with Justice Stephen Breyer. Observers anticipate Justice Elena Kagan, who "might be
best described as a center-left pragmatist," to ioin this highly influential group
of swing voters.la
Justice Anthony Kennedy often joins Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito to crete a strong conservative bloc in the Roberts Court. Conservative justices, in general' want to
reduce the role of the federal government, including the Supreme Court. They
also tend to favor a narrow, or close, reading of the Constitution that relies
more heavily on original intent than on contemporary realities or concerns.
However, following the Roberts Court's second term, one legal scholar said:
"The unifying element of the Court's conservative leanings is not a commitment to any particular conservative judicial doctrine (e.g. originalism), but a
commitment to the political and ideological positions espoused by conservative
Republicans in the 1980s. Further, the Court is not particularly 'minimalist'
or restrained in its approach . . . [and] is quite willing to push a conservative
agenda quite aggressively."ls
13
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A uulrtruo oF couRr sysTEMs exists in the United States: the federal system, one
system for each state, the courts of the District of Columbia and the territories'
and the military court system. There are three levels of courts: trial courts,
15
't7
Sources of
the Law
Mone rHnru 200 vnns AGo, the U.S. Supreme Court granted itself the power to
review the constitutionality of laws and government actions. The Court said the
power of judicial review was embedded in the Constitution's balance of power
and was an essential means to maintain the rule of law and check abuse of power
by the other two branches of government. Through judicial review, courts have
the power to interpret constitutions and to determine when government actions
are invalid because they fail to meet constitutional requirements. State courts
rarely exercise their power of judicial review, and the U.S. Supreme Court prefers
to use this power sparingly. Controversy surrounds the Court's exercise of judicial
review because of the political appointment of justices and the argument that the
justices' political philosophies inappropriate influence the Court's decisions.
19
Sources of
the Law
example, the U.S. Constitution says nothing about municipalities; states create and determine the authority of cities or towns.
The Three Branches of Federal
Under this power, the Maine legislature amended the state conGovernment
stitution in 1,970 to increase the independent authority of towns
The Executive
and to permit them to autonomously decide whether to abandon
The president, the cabinet and the administhe traditional town meeting form of governance. In another
trative agencies execute laws.
'Sashington
State's constitution contains an explicit
example,
The Legislative
privacy clause that protects individuals from disturbances of
The Senate and the House of Representtheir private affairs. In contrast, the federal constitutional right
atives pass laws.
to privacy exists only through the U.S. Supreme Court's interThe Judicial
pretation of the protections afforded by the First Amendment.
The three levels of courts review laws
The U.S. Constitution is the supreme law of the United
and adjudicate disputes.
States. It establishes the fundamental legal rules that dictate the
proper actions of all divisions of government. As the foundation
of government, the Constitution is relatively difficult to change. There are two
ways to amend the Constitution. The first method, and the only one that actually
has been used, is for a proposed constitutional amendment to pass both chambers of Congress by a two-thirds majority vote in each. The second method is for
two-thirds of the state legislatures to vote for a Constitutional Convention, which
then proposes one or more amendments. Regardless of the proposal method,
all amendments to the Constitution also must be ratified by three-fourths of
the state legislatures. State constitutions can be amended only by a direct vote of
the people.
Congress has approved only 33 of the thousands of proposed amendments
to the U.S. Constitution, and the states have ratified only 27 of these. The first
10 amendments to the Constitution-generally known as the Bill of Rightsare of primary interest to students of journalism and mass communication
law. In fewer than 500 words, the Bill of Rights guarantees the fundamental
rights and freedoms of Americans and limits the power of government. The
Statutes
The U.S. Constitution explicitly delegates the power to enact statutory laws to
the popularly elected legislative branch of government: the U.S. Congress and the
state, county and city legislatures. Through their power to make laws, legislatures
respond to-or predict and attempt to prevent-social problems. Thus, statutory
law sometimes is extremely fact specific and defines the legal limits of particular
types of activities. All criminal laws are statutes, for example. Statutes also establish the rules of copyright, broadcasting, advertising and access to government
meetings and information. Statutes are formally adopted through a public process
21
Sources
and are meant to be clear and stable. They How a Bill Becomes a Law
are written down in statute books and codified or collected by codes into related topics, and anyone can find and read them in
public repository libraries.
The language of statutes, however,
can be unclear, imprecise or ambiguous. In
of the Law
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court interpretation of a statute. Problems arise when, for example, some state
statutes fail to define key terms, such as
the word rneeting under their open meetings law. As a consequence, it is unclear
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statutory construction The
review of statutes in which courts
determine the meaning and
application of statutes. Courts tend
23
Sources of
fairness requires lo\Mer courts to try to apply the same principle to similar facts.
This establishes consistency and stability in the law.
Under the rule of stare decisis, the decision of a higher court, such as the U.S.
Supreme Court, establishes a precedent that is binding on lower courts. A binding
precedent of the U.S. Supreme Court constrains all lower federal courts throughout the country, and the decisions of each circuit court of appeals bind the district
courts in that circuit. Similarly, lower state courts must follow the precedents of
their own state appellate courts and the state supreme court, However, courts
from different and co-equal jurisdictions do not establish binding precedent upon
their peers. Courts in Rhode Island are not bound to follow precedents established in'slyoming, and federal district courts are not bound to apply precedents
established by appellate courts in other federal circuits. In fact, different federal
appellate courts sometimes hand down directly conflicting decisions. Courts prefer to avoid such conflicts, however, and often will look to other courts and consider their decisions as a guide when facing a novel question.
Even when the power of stare decisis is at its greatest, lower courts may
choose not to adhere to precedent. Courts may, at the risk of the judges' credibility, simply ignore precedent. After all, the common law is not written down
in one easily accessible volume. Instead, the common law must be discovered
through research in the thousands of court decisions collected into centuries of
volumes, called court reporters. Courts also may depart from precedent with
good reason. Courts examining a new but similar question may decide to modify precedent-that is, to change or revise the precedent to adapt to changed
realities and perceptions. Thus, the U.S. Supreme Court might find that contemporary attitudes and practices no longer support a 2}-yearold precedent
permitting government to maintain the secrecy of computer compilations of
public records. Given the rapid disappearance of paper records in government,
the Court might modify its precedent on application of the federal Freedom of
the Law
precedent.
between the current case and the precedent case outweigh any similarities. Thus,
Supreme Court has distinguished between newspapers and
broadcasters in terms of any right of public access.27 The Court said the public
has a right to demand that broadcasters provide diverse content on issues of public importance because broadcasters use the public airwaves. The Court did not
apply that reasoning five years later when it considered virtually the same question as applied to newspapers. Newspaper owners, publishers and editors, the
Court said, are private, independent members of the press who enjoy a virtually
unabridgable right to control the content of their pages.
25
to presidential records. Similarly, mayors and governors have issued ordersprticularly under perceived emergency conditions-that limit public freedom of
movement. For example, mayors across the country have imposed city curfews
that prohibit teenagers from being on the streets affer a certain hour and have
established no-protest zones around major, controversil events.
SUMMARY
Lnws, on LEGAI RULEs, in the United States come from six sources. Federal and state
constitutions establish government structure, responsibilities and power. Constitutions are the highest law of the land. Congress and the legislatures of every
state, city nd county enact statutes. All statutes are codified. Courts determine
the meaning of statutes through the process of statutory construction. Equity
and common law are judge-made law and are not compiled into books. Judges
create equity law when they issue orders or injunctions to solve a specific problem. The common law has developed through the body of judicial decisions
that rely on precedent and tradition to determine the outcome of disputes. The
authority of administrative agencies is established by statute to oversee complex
areas that require special expertise. Thousands of executive branch administrative agencies establish legal rules that determine everything from the definition
of false advertising to the number of different media a given corportion can
control. Executives at each level of government issue orders that have the force
of law. r
Although each court and each case follows a somewhat idiosyncratic path, general patterns can be traced through the judicial process. In a criminal mtter, the
case starts when a government agency investigates a possible crime. After gathering evidence, the government arrests someone for a crime, such as distributing
obscene material through the Internet. The standard of evidence needed for an
arrest or to issue a searchlvarrant is known as probable cause, Probable cause
involves more than mere suspicion; it is a showing based on reliable information
that a crime was committed and the accused individual is likely the person who
committed it. The case then goes before a grand jury or a judge. Unlike trial juries
(also called petit juries), grand juries do not determine guilt. Instead, grand juries
are summoned on occasion to hear the state's evidence and determine whether
that evidence establishes probable cuse to believe that a crime has been committed. If the case proceeds without a grand jury, the judge is required to make a
probable cause determination at a proceeding called a preliminary hearing. If the
state fails to establish probable cause, the case may not proceed. If probable cause
is found, the person is indicted.
27
the charge, by filing a motion to dismiss or by filing a motion for summary judgment. A motion to dismiss, or demurrer, is a request to a court that a complaint
be rejected because it is legally insufficient in some way. For example, a media
defendant may admit that it published the news story that upset the plaintiff but
argue that the story did not cause any legally actionable harm to the plaintiff. If
the court grants the motion to dismiss, the plaintiff may appeal.
Before a case goes to trial, the disputing parties may agree to an out-of-
court settlement. !hen this occurs, there is no public record of the outcome
of the case. Out-of-court resolutions often prohibit the parties from discussing
the terms of the settlement. Sometimes, as when Nike settled a lawsuit brought
by attorney Mark Kasky in2002,2e some terms of the settlement are publicized.
After a lengthy legal battle over Kasky's claim that Nike's statements about
working conditions at its overseas factories amounted to false advertising, the
'Sithout
parties settled out of court.
admitting liability, Nike reported on its
website that it had agreed to pay a total of $1.5 million toward independent
oversight of its factories and additional worker training and development.30
If the issues in a civil suit are narrow or the parties are close to resolution, the
judge may attempt to settle the case through a court conference. More often, the
two sides do not agree on the facts and begin to gather evidence through a process
called discovery. The discovery process can last for months, during which either
side may file motions asking the court to take action on various issues or amend
earlier complaints. In trying to build a case, one or both parties may issue a subpoena, which is a legal command for someone, sometimes a journalist, to testify
in court. \ith few exceptions, citizens are legally obligated to comply with subpoenas. The judge may issue a contempt of court citation against individuals who
refuse to comply with subpoenas. Contempt citations sometimes land journalists
in jail. Throughout the pretrial period, both sides may attempt to "spin" their case
in the media. Judges are sensitive to the potential harmful effects of pretrial publicity on the fairness of trials.
Finally, the dispute is heard in court. The majority of civil suits are resolved
tort A private or
it
other way.
29
After all the evidence is presented at trial, the judge issues instructions to
the jury on how the law should be applied to the fcts of the case. Then the
jury deliberates. If the jury cannot reach a verdict, it may be necessary to hold
a new trial with a new jury. More typically, a jury deliberates until it reaches a
verdict. The judge generally accepts the verdict and enters it as the judgment of
the court. However, the judge has the authority to overturn the verdict if he or
she believes it is contrary to the law. If the plaintiff is successful, he or she will
usually be awarded damages. After the judgment of the court is entered, either
the plaintiff or the defendant may appeal. For example, having the jury properly
instructed on the law is part of the right of due process, and improper instructions sometimes form the basis for appeal. The person who appeals, called the
petitioner or appellant, challenges the decision of the court. The respondent to
the appeal, or the appellee, wants the verdict to be affirmed. It can take years and
cost hundreds of thousands of dollars to appeal a case up to the Supreme Court.
As noted previously, the chance the Court will agree to hear an appeal is slim.
Summary Judgment
'Shen
parties ask a court to dismiss a case, they file a motion for summary judgment. Parties moving for summary judgment seek to avoid the cost and risk of
losing at trial by demonstrating to the judge that no material issues of fact remain
in dispute. A motion for summary judgment must be filed with supporting evidence. A summary judgment is just what the name implies: a judge summarily
decides the case and issues a judgment. Thus, a summry judgment results in a
legal determination by a court without a full trial. A court's summary judgment
may be issued based on the merits of the case as a whole or on specific issues
critical to the case. If the judge determines there are no material issues of fact
remaining for trial, the judge hands down a summary judgment in favor of one
party.lf there is no summary judgment or other form of pretrial dismissal, law-
case.
31