Chapter 1 The Historical and Constitutional Foundations

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Chapter 1The Historical and Constitutional
Foundations
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Learning Objectives

• What is the Common Law Tradition?
• What is a Precedent? When might a court depart
  from precedent?
• What is the difference between remedies at law
  and remedies in equity?
• What constitutional clause gives the federal
  government the power to regulate commerce among
  the states?
• What is the Bill of Rights? What freedoms are
  guaranteed by the First Amendment?

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The Common Law Tradition

• Early English Courts of Law
• Kings courts started after Norman conquest of
  1066.
• Established the common lawbody of general legal
  principles applied throughout the English empire.
  
• Kings courts used precedent to build the common
  law.

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The Common Law Tradition

• Stare Decisis
• Practice of deciding new cases based on
  precedent.
• A higher courts decision based on certain facts
  and law, is a binding authority on lower courts.
• Helps courts stay efficient.

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The Common Law Tradition

• Equitable Remedies Courts of Equity
• Remedy means to enforce a right or compensate
  for injury to that right.
• Remedies in Equity based on justice and fair
  dealing a chancery court does what is right.
• Merging Today, legal and equitable remedies are
  found in the same court.
• Equitable Maxims Whoever seeks equity must do
  equity.

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Sources of American Law

• Constitutional Law
• Found in text and cases arising from federal and
  state constitutions.
• U.S. Constitution is the supreme law of the land.
• Statutory Law
• Federal Statutes
• State Local Statutes and Ordinances
• Uniform Laws (e.g.,Uniform Commercial Code)

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Sources of American Law

• Administrative Law
• Rules, orders and decisions of administrative
  agencies, federal, state and local.
• Administrative agencies can be independent
  regulatory agency such as the Food and Drug
  Administration.
• Agencies make rules, then investigate and enforce
  the rules in administrative hearings.

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Sources of American Law

• Case Law and Common Law Doctrines
• Much of the common law is still used today.
• Common law governs all areas not specifically
  covered by statutory or constitutional law.
• Restatements of the Law modern compilations of
  common law principles found, e.g., in contracts,
  torts, property and agency.

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Classifications of Law

• Substantive vs. Procedural Law
• Substantive laws that define and regulate rights
  and duties.
• Procedural laws that establish methods for
  enforcing and protecting rights.
• Civil Law and Criminal Law
• Civil private rights and duties between persons
  and government.
• Criminal public wrongs against society.

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Classifications of Law

• National and International Law
• National laws of a particular nation.
• Civil vs. Common Law Civil law countries based
  on Roman code (e.g., Latin America).
• International body of written and unwritten laws
  observed by nations when dealing with each other.
  
• Cyberlaw governs internet transactions.

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Constitutional Powers of Government

• Federalism The federal constitution was a
  political compromise between advocates of state
  sovereignty and central government.
• Separation of Powers Executive, Legislative and
  Judicial. Provides checks and balances.
• Legislative enacts laws
• Executive enforces laws
• Judicial declares laws/actions unconstitutional.

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The Commerce Clause

• U.S. Constitution gives Congress the power to
• regulate Commerce with foreign Nations, and
  among the several States, and with the Indian
  tribes. (Art 1 8)
• Greatest impact on business than any other
  Constitutional provision.

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The Commerce Clause

• Gibbons v. Ogden (1824).
• Interstate commerce means any business dealing
  that substantially affects more than one state.
• The national government has the exclusive power
  to regulate interstate commerce.

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The Commerce Clause

• Since Gibbons v. Ogden, Federal Regulatory Powers
  have expanded under Commerce Clause
• Wickard v. Filburn (1942). Purely local
  production, sale and consumption of wheat was
  subject to federal regulation.
• Heart of Atlanta Motel v. U.S. (1964). Motel
  that provided public accommodations to guests
  from other states was subject to federal civil
  rights legislation.

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The Commerce Clause

• Commerce Clause Today
• Theoretically the federal government has
  unlimited control over all business transactions
  since any enterprise (in the aggregate) can have
  a substantial effect on interstate commerce.
• Practical Limits Supreme Court has curbed
  federal regulatory powers in U.S. v. Lopez (1995)
  and U.S. v. Morrison (2000).

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Regulatory Powers of the States

• Tenth Amendment reserves all powers to the states
  that have not been expressly delegated to the
  national government.
• State have inherent police powers.
• Police powers include right to regulate health,
  safety, morals and general welfare.
• Includes licensing, building codes, parking
  regulations and zoning restrictions.

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Dormant Commerce Clause

• U.S Supreme Court has interpreted commerce clause
  to give national government exclusive power to
  regulate.
• States only have a dormant (negative) power to
  regulate interstate commerce.
• Dormant power comes into play when courts balance
  states interest vs. national interest, e.g.,
  internet transactions.

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Business and the Bill of Rights

• 1791 Ten written guarantees of protection of
  individual liberties from government
  interference.
• Originally, Bill of Rights only applied to the
  federal government.
• Later, the Bill of Rights was incorporated via
  the 14th Amendment and applied to the States.
• Some protections apply to businesses.

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Free Speech

• Right to Free Speech is the basis for our
  democratic government.
• Free speech also includes symbolic speech,
  including gestures, movements, articles of
  clothing.
• Texas v. Johnson (U.S. 1989) burning the
  American flag is protected symbolic speech.

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Corporate Speech

• Corporate commercial speech (advertising) is
  given substantial protection. Government
  restrictions must
• Seek to implement substantial government interest
• Directly advance that interest and
• Must go no further than necessary to accomplish.
• Corporations also have protected political speech
  (although not to the degree of a natural person).

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Unprotected Speech

• U.S. Supreme Court has held that certain speech
  is NOT protected
• Defamatory speech
• Threatening speech that violates criminal laws
• Fighting Words
• Obscene Speech is patently offensive, violates
  community standards and has no literary,
  artistic, political or scientific merit.

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Online Speech

• Protected or Unprotected?
• Some of Congress attempts to protect children
  from online pornography have been ruled
  unconstitutional restriction on free speech.
• Communications Decency Act (1996)
• COPA (1998-challenged, in court)
• Childrens Internet Protection Act (2000) which
  requires filters for computers in public
  libraries and public schools). Challenged, in
  court.
• What about hate speech on the web?

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Freedom of Religion

• First amendment guarantees that Congress shall
  make no law respecting an establishment of
  religion, or prohibiting the free exercise
  thereof
• Establishment clause no state-sponsored religion
  or preference for one religion over another.
• Free Exercise person can believe what he wants,
  but actions may be unconstitutional.

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Due Process

• Due Process is both procedural and substantive.
• Procedural any government decision to take life,
  liberty or property must be fair. Requires
  Notice and Fair Hearing.
• Substantive focuses on the content or the
  legislation (the right itself).
• Fundamental Right requires compelling state
  interest.
• Non-Fundamental rational relationship to state
  interest

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Equal Protection

• 14th Amendment A state may not deny to any
  person within its jurisdiction the equal
  protection of the laws.
• Means that government must treat similarly
  situated individuals (or businesses) in the same
  manner. Courts apply different tests
• Minimal scrutiny-economic rights.
• Intermediate scrutiny.
• Strict Scrutiny fundamental rights.

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Privacy Rights

• Fourth amendment protects against unreasonable
  search and seizures.
• What about private information on the internet?
  Reno v. Condon (2000).
• Griswold v. Connecticut (1965) found a right to
  personal privacy implied in constitution,
  expanded in Roe v. Wade (1973).
• Website privacy policies.

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Appendix

• Finding Statutory Law.
• United States Code (USC).
• State Statutes.
• Finding Administrative Law.
• Code of Federal Regulations (CFR).
• Finding Case Law (Case Citations).
• Supreme Court Cases at Findlaw.com.
• Federal Court Cases at Findlaw.com.
• State Court Cases at Findlaw.com.

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Appendix

• Reading Understanding Case Law
• Legal cases are identified by a legal citation
  (or a cite) as the example below
• Clark County School District vs. Breeden, 532
  U.S. 268 (2001).

Title First Party is Plaintiff, second party is
Defendant. The parties are either italicized or
underlined.
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Appendix

• Reading Understanding Case Law
• Legal cases are identified by a legal citation
  (or a cite) as the example below
• Clark County School District vs. Breeden, 532
  U.S. 268 (2001).

This is a U.S. Supreme Court Case (U.S.) found
in Volume 532, Page 268. This case was decided
in 2001.