Legal systems

Common law and civil law systems   

The common law system  originated in Britain and is found in countries with historic ties to Britain (such as the United States, India, Canada, Australia and others).  In this system, court opinions and precedents are the most important factors in determining the outcome of any given case, and courts may review legislation for constitutionality.

The civil law system  originated in the Roman Empire in Europe and was modified by the Napoleonic code and other approaches to law.  Under this system, laws made by a parliament or legislature determine the outcome of any given case, and courts do not review legislation for constitutionality.

Five sources of US law:

• 1  Constitutional  — At both state and federal levels, constitutions provide for a check on the power of the legislature and executive on the basis of the Constitution.

Judicial branch:

• 2 Common or Case law  This was originally based on long legal history and custom stretching back more than a thousand years. In the common law system, such as in the US, the UK or Commonwealth countries, this is the primary component of the legal system.   
• 3  Equity — A small component of modern systems in the US usually related to wills, divorces, injunctions and other civic record-keeping, or when money is inadequate or inappropriate as a remedy.

Legislative branch:

• 4  Statutory Law  (Written by Parliament, Congress, state legislatures).  In the US,  statutory law applies in some areas (copyright or FCC regulations, for instance) but not others (First Amendment free speech cases).  This means that the courts make the rules by interpreting the Constitution under common law.   

• — Link to  US Code
• — Link to  Virginia Code

Executive Branch 

• 5 — Regulatory or administrative law (executive agencies such as the Federal Communications Commission, the Federal Trade Commission, or state agencies)
  • See the Code of Federal Regulations
  • See Virginia Administrative Code

 categories of law 

• In criminal law, a case is brought by the police or a district attorney, usually after evidence is gathered by police or a grand jury.
• In civil law, a case is brought by any person against another person (or corporation). Money and behavior are the only issues at stake. If there is a crime involved, charges may be brought separately under criminal law.
  • The two major categories of civil law are contracts and torts
    • A contract is a written document between people and/or corporations that is enforceable in court. This is the main point of study in business law.
    • A tort is a wrong that involves a breech of civil duty or implied social contract.  Torts can involve:
      • negligence (alleged in personal injury cases);
      • statutory torts (such as product liability as defined by a statute or law);
      • defamation and related “dignitary” torts (such as invasion of privacy, misappropriation of publicity, and disclosure of private facts), are always civil cases in the US.

The US court system

Federal and state courts are the two main branches of the US legal system.

• State courts:
  • District / Inferior (traffic, misdemeanors, juvenile)
  • Circuit / Superior (civil and felony criminal)
  • State courts of appeals — > state supreme courts
• Federal district courts -> Federal Circuit Courts –> US Supreme Court
  
  What kinds of cases are heard in federal court?
• A civil case can become federal if the parties to the case are from different state jurisdictions.
• Sometimes the job of the US Supreme Court is to judge state supreme court decisions or decide between conflicting federal appeals court decisions.
• The US Supreme Court has final jurisdiction over both state and federal courts.
  

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The US Supreme Court

Established in the US Constitution of 1787, and structured in law in 1789, the US Supreme Court is the institutional capstone and final court of appeal in the federal and state court systems.  When a vacancy arises among its nine judges,  a new justice is nominated by the President and the Senate votes on whether to confirm the nominee.

Originally the court’s ruling applied only to the federal government and not to the states,  as Chief Justice John Marshall ruled in Barron v. Baltimore (1833). This meant that the First Amendment was no bar to suppression of speech, press  and religion at the state level. For example, the suppression of abolitionist (anti-slavery)  literature and speech under state laws was considered to be Constitutional before the Civil War.

In 1868, just after the Civil War,  the Fourteenth Amendment to the Constitution made “equal protection of the laws” enforceable at the state level.  Five years later, a series of US Supreme Court cases (the Slaughter House cases) severely limited the impact of the Fourteenth Amendment, many states continued to restrict or ignore citizen rights.  And when the highly conservative courts did apply the Fourteenth Amendment, as in the Lochner v New York case of 1905, they upheld “contract rights” of labor and struck down a law limiting workers hours to 60 per week and 10 per day.  During this “Lochner era,” the court also struck down minimum wage requirements, laws against child labor, and legislation protecting unions.

The first time the Fourteenth Amendment was used in a First Amendment case was  Gitlow v New York (1925), in which the Supreme Court upheld the  conviction of socialist leader Benjamin Gitlow for advocating revolutionary changes in government.

By the 1930s, the focus of the US Supreme Court began to shift from protecting property rights to protecting human rights.

First Amendment incorporation was a factor in other leading cases, including (as we will see later in this book/site): Near v Minnesota (1933); Burstyn v Wilson (1952); New York Times v Sullivan (1964); Brandenburg v Ohio (1969); New York Times v US (1972); and others.