Chapter 3: The American Legal System PDF

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© mirjanajovic/DigitalVision Vectors/Getty Images CHAPTER 3 The American Legal System OR OVER TWO DECADES, the shows in the Law and Order franchise have F been popular with television viewers. Each episode transports viewers into the world of American criminal law and process. A crime, investigation, and judicial process are neatly wrapped in a 1-hour episode, from the dramatic opening theme song with its scene-changing “clang” sound, to the final scene when justice is served. Law and Order episodes focus on criminal law, which is one aspect of the American legal system. This chapter provides a high-level overview of the legal system in the United States. It is important for Americans to have a general understanding of this system Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. because it affects us every day. We are bound by a system of laws that regulate our behavior and contribute to an ordered society. Laws reflect our values, and they evolve over time. The American legal system, its history, and its processes are a fascinating area of study. Many talented judges, attorneys, and law scholars have written excellent books about it. This chapter provides only an overview, but will outline a framework that can enable you to do further reading and research on this topic. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  Chapter 3 Topics This chapter covers the following topics and concepts: How the American legal system is organized What the sources of American law are What the types of law are What the role of precedent is What regulatory authorities are What the difference is between compliance and audit How security, privacy, and compliance fit together Chapter 3 Goals When you complete this chapter, you will be able to: Describe the American legal system Explain sources of law Distinguish between different types of law Explain the role of precedent Describe the role of regulatory authorities Explain the difference between compliance and audit Describe how security, privacy, and compliance fit together Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  The American Legal System The American legal system is composed of many distinct parts: federal and state governments, laws, and courts. Federal law exclusively governs some areas of the U.S. legal system; other areas depend on the subtle nuances of state law. Some parts of the legal system are based on written laws, called statutes or codes, which are developed by governments. Other areas of the law depend on principles developed from years of legal tradition and court decisions. There are two main types of laws. Civil law provides for the resolution of disputes between private individuals, organizations, or governments. Criminal law governs the prosecution of those charged with serious offenses against public order, such as murder. The basis for the American system of government, and the American legal system, is the U.S. Constitution. Federal Government The U.S. Constitution was ratified in 1789 and sets forth the structure of the U.S. federal government. Representatives from almost all of the states in existence at the time worked together to draft the Constitution. The state representatives realized that there were some areas in which a strong federal government was needed in order to keep the states united. However, the state representatives did not want a federal government that was too strong, nor did they want any one portion of the federal government to have too much power. These considerations help explain the current structure of the federal government. The U.S. Constitution calls itself “the supreme Law of the Land.”1 It is the fundamental authority for the American federal system of government. The Constitution defines three co-equal roles in the federal government: Legislative Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Executive Judicial Eligibility Requirements for the President and Members of Congress The Constitution provides eligibility requirements for the president and members of Congress. The president must be a natural-born U.S. citizen and must be at least 35 years old. The president must have been a resident of the United States for at least 14 years at the time of election.2 Senators must be at least 30 years old. They must have been citizens of the United States for at least 9 years. They must also be residents of the state from which they are elected.3 House members must be at least 25 years old. They must have been citizens of the United States for at least Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  7 years. They must also be residents of the congressional district from which they are elected.4 The legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch reviews the laws to make sure they are constitutional. This is the “checks and balances” system that describes the relationship among the three branches of the federal government. Each branch of government has a separate sphere of authority (balances). The actions of each branch of government are subject to review by the other branches (checks). The U.S. Constitution also defines the relationship between the federal government and the states. At the time that the Constitution was drafted and ratified, people debated the appropriate relationship between the federal and state governments. The previous legal document that established the federal government, the Articles of Confederation, was too weak to keep the states joined together. However, an overly strong federal government was seen as an obstacle that would prevent states and individuals from controlling their own affairs. The states wanted to make sure that they retained the authority to control their own affairs. The Constitution contains specific provisions to reflect this divided authority. The Constitution also provides some of the fundamental rights of individuals. Individual rights are located primarily in the Bill of Rights, which was ratified in 1791. The term Bill of Rights refers collectively to the first 10 amendments to the Constitution. These amendments are the basis for the personal rights that Americans hold most dear: NOTE Rhode Island was the only original state that did not send representatives to the Constitutional Convention. Freedom of speech (First Amendment) Freedom of religion (First Amendment) Freedom from unreasonable search and seizure (Fourth Amendment) Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. The right against self-incrimination (Fifth Amendment) NOTE Federalism is a term that describes the relationship between the states and the U.S. federal government. Legislative Branch The lawmaking authority of the legislative branch of the federal government is outlined in Article I, section 8 of the Constitution. Collectively, the legislative branch is called Congress. The federal government actually has limited lawmaking power. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  Congress cannot make any laws outside the scope that the Constitution specifically delegates to it. The U.S. Congress consists of two chambers: the U.S. Senate and the U.S. House of Representatives. The Senate has 100 members, two senators from each state. In this way, the Senate represents all states equally. The House of Representatives has 435 members. The House represents the population, as each Representative represents a congressional district. Congressional districts all have roughly the same number of people. The current number of people in each congressional district is 711,000. The congressional districts are redrawn after each decennial census and will next be redrawn after the 2020 census. Each state gets at least one representative no matter its total population size. Article I, section 8 of the Constitution lists the powers delegated to Congress, which are very broad. Congress has the power to: Declare war Establish the post office Maintain armed forces Coin (or print) money Regulate commerce Make other laws necessary for carrying out its constitutional duties The Commerce Clause grants Congress the power to regulate commerce between the states.5 Congress uses this provision as justification to regulate trade, or any other commercial activity, between the states. Many Supreme Court cases have reviewed the limits of this power. In general, if an activity has the potential to affect the trade relations between the states, then Congress is able to legislate it. Congress also has the power to enact laws that are “necessary and proper” for carrying out its duties.6 Congress can use the power implied in this section to legislate in several different areas. NOTE Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Preemption refers to the legal concept that means that a higher-ranking law will exclude or preempt a lower-ranking law on the same subject. This rule especially holds in the federal legislative context with respect to the Commerce Clause. States are preempted from making laws that may affect the trade relations between the states. The Constitution specifies the basic lawmaking process. A bill is the initial draft of a potential law. Both chambers of Congress must approve the same bill, and the president must sign it before it becomes a law.7 The procedural documents of both chambers describe the process for moving bills through each chamber. Once a bill is introduced, it is generally assigned to a specialty committee. The bill is revised during the committee process, which usually Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  includes hearings to determine why a law is needed in the first place. After the hearings, the committee votes on whether the bill should be sent to the full chamber for consideration. When a bill passes one chamber, it is forwarded to the other chamber for consideration. Once a bill passes both chambers, it goes to a conference committee made up of both senators and representatives. This committee reviews both the Senate and House of Representatives’ versions of the bill. This committee cannot substantially change the bills being compared, but tries to reach a compromise on both versions of the bill. When the committee reaches a resolution on the bill, they report back to their respective chambers. Each chamber votes on the bill again. If the original conference committee cannot reach an agreement, the bill may be assigned to a new conference committee or go back into committees of each chamber for additional revisions. The speaker of the House of Representatives and the president of the Senate sign all bills that pass in Congress before delivering them to the president. The president has 10 days to sign the bill. If the president does not sign it within 10 days, then it becomes law just as if the president had signed it. Executive Branch Article II establishes the power of the executive branch of government. The president of the United States, a nationally elected official, leads the executive branch of government. The president is also the commander-in-chief of the U.S. armed forces and is often considered the “face” of the United States. The president has the power to enforce the laws of the United States and the responsibility for maintaining the day-to-day operations of the U.S. government. The president also has the power to sign or veto any legislation that Congress passes. (Congress can then override a presidential veto with a two-thirds vote of both the House and the Senate.) Once the president signs the legislation, it becomes an Act of Congress, a federal law passed by the Congress and signed by the president. The president also appoints federal judicial, executive, and administrative Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. officials. The Senate must approve some of the president’s appointees, such as Cabinet members or federal judicial appointees. The president also has the power to negotiate and enter into treaties with other countries. However, the U.S. Senate must ratify those treaties. NOTE Federal laws are published in the United States Code, which is published by the federal government every 6 years. The current version was published in 2018. You can find online versions of the code at https://uscode.house.gov/. The role of the U.S. Cabinet is to advise the president. The Cabinet includes the Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  U.S. vice president and the heads of 15 executive departments. President George Washington established the first Cabinet. Although the Constitution recognizes that the president should have advisers in executive departments, it does not specify the type or number of executive departments. Congress creates the executive departments. Judicial Branch Article III of the Constitution establishes the judicial branch of the federal government. This Article vests the judicial power of the United States in one supreme court. The U.S. Supreme Court is the highest court in the country. The U.S. Supreme Court is the only court specifically required by the U.S. Constitution. Congress has the authority to determine the actual number of Supreme Court justices; currently, there are nine. The president nominates the justices when there is a vacancy on the Court. The Senate must confirm the nomination. Supreme Court nominees are usually highly respected state or federal judges or highly respected attorneys. Supreme Court justices, similar to all federal judges, are appointed for life. They serve until their retirement, death, or removal. Supreme Court justices can be removed only if they are impeached and convicted by Congress. The Constitution requires that all federal court judges be appointed for life for a simple reason: to help promote an independent judiciary. The drafters of the Constitution did not want the review of law to be dependent upon popular political ideas. Instead, they wanted federal judges appointed for life, so that they could not be fired if their decisions were unpopular or not favorable to a particular political party. TABLE 3-1 lists the members of the U.S. Supreme Court as of January 2020. TABLE 3-1 Members of the U.S. Supreme Court as of January 2020. Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Description Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  Structure of the Federal Judiciary. It is important to understand how the different courts in the federal system relate to one another. Once this structure is understood, it can be applied generally to state judicial systems. Courts have the ability to hear only cases, or disputes, that are within their jurisdiction. Jurisdiction describes the types of cases that a court has the authority to hear. There are three main types of jurisdiction used to describe the function of a court: Original jurisdiction—The power of a court to hear the initial dispute between parties. These courts conduct trials. Usually trial courts have original jurisdiction. Concurrent jurisdiction—Jurisdiction that is shared by several different courts. Appellate jurisdiction—The power of a court to review a decision made by a lower court. In the federal court system, federal courts have limited jurisdiction. That means that they can hear only certain types of cases that fall within a limited subject matter. The jurisdiction of the federal courts is determined by the Constitution and laws made by Congress. Federal courts can hear only the following kinds of cases: Disputes regarding federal laws or constitutional issues Disputes between residents of different states where the amount of money in controversy is greater than $75,0008 A court cannot hear cases that fall outside its functional or subject matter jurisdiction. In addition to establishing the Supreme Court, Article III of the Constitution also gives Congress the power to make as many lower-level federal courts as needed. Under this power, Congress has established district courts, appellate courts, and some specialized courts. District courts are the lowest level of courts in the federal court system. There are 94 judicial districts in the United States, with each state having at least one judicial district. Some states may be divided into many judicial districts, and each district Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. may have more than one judge. The number of judges in a district is determined by the number of cases, or caseload, in the district. Usually only one judge hears a case at the trial court level. The district courts are the workhorses of the federal judicial system and serve as courts of original jurisdiction. They might hear disputes between parties or conduct criminal trials for violations of federal law. Each federal district court also has its own bankruptcy court. The Constitution gives the federal government the sole power over bankruptcy law. The next level of courts is the intermediate appellate courts. In the federal system, these courts are called the U.S. Courts of Appeals. There are 13 Courts of Appeals. The 94 district courts are grouped into 12 geographical circuits. There is Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  also one circuit, called the Federal Circuit, which hears cases from specialized courts. The Courts of Appeals hear appeals from the district courts in their circuit. For example, the Seventh Circuit Court of Appeals hears cases from Illinois, Indiana, and Wisconsin. The home for the Seventh Circuit is in Chicago, Illinois. The number of judges in each circuit is determined by Congress. These courts usually hear cases in three-judge panels. NOTE Federal question jurisdiction refers to the power of federal courts to hear only disputes about federal laws or constitutional issues. Diversity of citizenship jurisdiction refers to the power of federal courts to hear only disputes between citizens of different states that are above a certain dollar amount. The Court of Appeals is a court of appellate jurisdiction. Courts of Appeals do not review the facts of a case, nor do they accept any additional evidence for the case. Instead, they review the record of the trial court only for mistakes of law. The highest level of court in any judicial system, state or federal, is often called a “court of last resort.” The highest court in the U.S. federal system is the U.S. Supreme Court, a court of appellate jurisdiction. For the most part, the Supreme Court decides cases on appeal from the U.S. Court of Appeals. The Supreme Court reviews the decision of the lower court to make sure that it complies with the law. The Supreme Court is under no obligation to review a decision from the U.S. Court of Appeals. A party has to ask the Supreme Court to review the case by using a petition called a writ of certiorari, which the Supreme Court justices review. The Court usually approves the petition if four of the nine justices decide that the Court should look at the case. The Court might decide to hear a case if it presents a question of whether a federal law is unconstitutional. It also might decide to hear a case if two or more of the federal appellate courts have ruled differently on the same question of federal or U.S. Constitutional law. The Supreme Court has exclusive original jurisdiction to decide cases about disputes between state governments. It exercises concurrent jurisdiction with Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. federal district courts in some cases, and exercises this original jurisdiction very rarely. Most of the cases heard before the Supreme Court are appeals cases. The Supreme Court has the power to decide cases that involve questions about the federal Constitution and other federal laws. It can review both state and federal laws to make sure that those laws do not conflict with the U.S. Constitution. The authority to review laws in this way is called judicial review. The Supreme Court is the final authority on cases heard in the federal court system; as such, the decisions of the U.S. Supreme Court cannot be appealed. FIGURE 3-1 shows the structure of the U.S. federal court system. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  FIGURE 3-1 Structure of the U.S. federal court system. Description NOTE In the law, an appeal is a formal request for a higher authority to review the decision of a lower court. Any party who is unhappy with the judgment received in a district court can appeal to the Court of Appeals for that district. The unhappy party must be able to show that the trial court made a legal error that affected the holding, or decision, in the case. State Government In negotiating and drafting the U.S. Constitution, state governments gave up some of their own power in order to create the federal government. They did this because the first system of government after the American Revolution that was organized under the Articles of Confederation did not work. That document did not create a national government that could require unity on subjects of common interest. The U.S. Constitution changed that relationship. Under the Constitution, powers that are not specifically granted to the federal Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. government in the Constitution remain with the states. The Tenth Amendment to the Constitution formalized this relationship. The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”9 State governments existed before the federal government as we know it today. Similar to the federal government, most states are organized under a constitution, which may vary widely from the U.S. Constitution. Although the federal Constitution primarily describes the relationship between the federal government and the states, state constitutions primarily describe the relationship between a state and its citizens. For this reason, state constitutions often list many more individual rights than are listed in the federal Constitution. State constitutions also tend to be longer Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  than the federal Constitution. Finally, state constitutions are generally easier to change than the federal Constitution. There are typically three branches to most state governments, roughly aligned in the same manner as the federal government. Most state legislatures resemble the legislative branch of the federal government and have two different legislative chambers. A governor leads the state executive branch. State governments have the general authority to govern and make laws for the state and its citizens. However, this power is not absolute. The federal Supremacy Clause limits this broad power to make laws.10 The Supremacy Clause sets forth the rule that the federal Constitution, treaties, and federal law outrank any conflicting state laws. This clause means that the U.S. Constitution and federal laws are the highest laws in the land and states must follow the federal laws. The clause permits states to make their own laws only so long as those laws do not conflict with the U.S. Constitution or other federal laws. Because the U.S. Constitution limits the federal government in the types of laws that it can enact, there are still plenty of areas for state governments to legislate. NOTE The State of Alabama is widely recognized as having the longest state constitution. It has 799 amendments. The current constitution, adopted in 1901, is the state’s sixth constitution. Most states have a judicial system that looks similar to the federal system, with a system of trial courts, appellate courts, and courts of last resort. The trial courts, the original jurisdiction courts for a state, are organized by geographical location, with county-level courts being the typical entry-level courts for hearing most disputes. Trial courts have the general authority to hear all sorts of cases, but they are usually limited to hearing disputes between citizens of the state. NOTE Only the state of Nebraska has a unicameral legislature, meaning it has only one legislative chamber. All Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. other states have a bicameral legislature, meaning they have two chambers. The U.S. Congress is a bicameral legislature. States usually have two appellate courts: a state intermediate appellate court and a state supreme court. States usually only have one type of each court. The intermediate appellate courts hear appeals from the trial courts, whereas the state supreme court hears appeals from the appellate court. It is important to remember that not all states have the exact same structure, even though you can draw parallels when discussing structure in general. These courts may go by different names in different states. For example, the highest court in New York is called the New York Court of Appeals. In many states, the court of appeals is the intermediate appellate Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  court. FIGURE 3-2 shows the general structure of a state court system. FIGURE 3-2 General structure of the U.S. state court system. Description The relationship between the state and federal court systems is very interesting. The U.S. Supreme Court has complete authority over courts in the federal system. It also has complete authority over interpretations of federal law and the U.S. Constitution. However, the Supreme Court has no authority over the organization or procedures used by state courts. The Supreme Court may not interpret issues that rely solely on state law or issues arising under state constitutions. Only the highest court in a state is allowed to make interpretations about that state’s law. Federal and state courts do not exist in separate spheres. State courts do have Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. the power and authority to review cases that concern issues of constitutional or federal law. However, the state courts must yield to the superiority and previous decisions of the Supreme Court when doing so. The U.S. Supreme Court can review a state court case in the event that the case concerns a question of federal law or a federal constitutional issue. TABLE 3-2 compares the federal judicial system with a generic state judicial system. TABLE 3-2 A Comparison of the Federal and State Judicial Systems STATE JUDICIAL SYSTEM FEDERAL JUDICIAL SYSTEM Courts of Original Jurisdiction Trial courts U.S. District Courts Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  Courts of Original Jurisdiction Trial courts U.S. District Courts Courts of Appellate Intermediate appellate courts Circuit Courts of Appeal Jurisdiction Courts of Last Resort State supreme court U.S. Supreme Court Cases must involve a federal General authority to hear all question or involve disputes Scope of Authority disputes; authority is limited to between citizens of different states disputes involving state citizens and be over $75,000 Final, unless the case involves a Authority of Court of Last federal question; if so, case can Final Resort be appealed to U.S. Supreme Court Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  Sources of American Law The law is not secret, but it is complex. Many of the processes and procedures in the law have evolved over time. They are a combination of the will of the federal and state governments, longstanding traditions about right and wrong, and society’s values. It is no wonder that finding out what law applies to a particular situation is sometimes puzzling. This chapter has already discussed several sources of law: U.S. Constitutional law U.S. federal law State constitutional law State laws Now it is time to put these sources in context for the American legal system. This next section discusses the general sources of law and how they relate to one another. Common Law The common law is a body of law that is developed through legal tradition and court cases. The U.S. common law is a body of law and legal principles inherited from England that changes very slowly—it develops as judges decide court cases. Therefore, it is sometimes also known as case law or judge-made law. In the common law, courts decide cases by referring to established legal principles and the customs and values of society. They also look at decisions made in earlier cases to see if the cases are similar. If the cases are similar, a new case should reach a similar result. Finally, formal principles of logic and reason are used to help reach a decision when the result is unclear. Parties arguing a common law case use a similar approach. Attorneys may argue Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. that the customs and values of society have changed such that a new result is appropriate. Attorneys also may attempt to distinguish the facts of the current case from the facts of earlier cases. In all instances, attorneys must use logic and reason to form the basis for their arguments. The American legal system generally follows the common law tradition. Many countries colonized by the English have adopted similar systems. After the Revolutionary War, common law grew in America and was heavily influenced by “new” American social and economic values. The common law has continued to evolve, and judicial decisions continue to influence it. The development of the common law continues so long as its decisions and conclusions are not in conflict Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  with other laws, such as constitutional documents or state and federal statutes. Common law principles are often included within the code law of the federal or state government. An example of this is privacy torts. There are four privacy torts that came to be recognized as torts through the evolution of common law. Courts gradually heard cases regarding issues related to the subject matter area of these torts. As they heard the cases, some courts would recognize the tort and allow the cause of action. Some would not. Gradually, many states adopted the four privacy torts and some states have even written the torts into their statutes. In the United States, the common law continues to be very influential in civil law areas such as torts, contract law, and property law. Code Law Code law is law that is enacted by legislatures. It is also sometimes called statutory law. This is the written law that is adopted by governments. In its truest form, code law attempts to state the complete system of law for a state or federal government. Citizens and members of the legal profession are all bound by the terms of the written law. In the United States, the common law and code law work together in most states to form the laws that society must follow. There has been a strong movement within the law to codify the common law. This is to help make sure that citizens understand the law. Many states have codified their common law criminal principles into written law. Some states also have codified parts of their civil (noncriminal) laws. Once a code or statute provision is made that addresses the common law, it supersedes the common law in that area. The principles and traditions of common law are transformed into a code of laws. NOTE No discussion of the law would be complete without a Latin phrase or two. Code law is called lex scripta, meaning law that is written down. Common law is called lex non scripta, meaning law that is not written down. Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Constitutional Law The U.S. Constitution is the final source of authority for issues involving U.S. federal laws. When federal laws are disputed, they are subject to scrutiny to determine whether the law is constitutional. If the law is not constitutional, it is invalid. If the law is constitutional, then it is the source of authority for its particular subject matter. NOTE Louisiana is the only state that does not base its law on common law principles. Instead, the laws of the Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  state are based upon the Napoleonic Code, which is the French civil code. Similarly, state constitutions are the final source of authority for issues involving state law. So long as the state constitutional provision itself is not in conflict with the U.S. Constitution or federal law, then it will be the final decision on state laws. If a state law is constitutional (under both the state and, if challenged, U.S. Constitution), then it is the source of state authority for its particular subject. How Does It All Fit Together? The American legal system contains many different levels of written (codified) and unwritten (uncodified) laws. This is why it is sometimes hard to figure out what the “law” is with respect to a new situation. When an attorney or judge has to analyze the law that applies to a certain situation, he or she applies the rules of statutory construction for looking at an issue. The rules of statutory construction generally mean that the laws of the legislature (code law) are given greater deference than the laws of the courts (common law). If codes are in conflict with the common law, then the text of the code should control the outcome of the case. The problem in analysis occurs when a code has ambiguous terms. When reviewing a legal issue, an attorney or court might start by first reviewing whether the issue involves a question that can be answered by the U.S. Constitution or a state constitution. If the legal issue involves a question of federal law, the U.S. Constitution is the first authority that should be consulted. The same principle applies for questions of state law. If the legal issue cannot be resolved by looking at constitutional laws, the next step is to look at the code law. For federal issues, federal statutes would be reviewed. For state issues, state statutes would be reviewed. The attorney or court will look to see that the issue fits clearly within the scope of the code law. If the issue is clearly resolved by looking at code, then the analysis is complete. When the issue cannot be resolved by looking at the code, attorneys and lawyers turn to the common law to find the guidance needed to resolve the case. For federal Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. issues, federal common law doctrine and federal court cases need to be reviewed. For state issues, state common law doctrines and court cases need to be reviewed. Key in the review of common law is the influential role of precedent, which is discussed later in this chapter. NOTE Legal issues are rarely resolved simply by looking at statutes. If they were, there would be little need for attorneys or courts. Often a statute is poorly written. For example, its terms and provisions could be ambiguous or open to interpretation. Sometimes statute writers simply do not anticipate the legal issue that is being considered. Attorneys and courts are needed to resolve ambiguities and new legal issues. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07. Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  Types of Law The legal system usually distinguishes between procedural law and substantive law. Substantive law is also known as subject matter law. Subject matter areas of law are areas in which an attorney might specialize. For instance, contract law, tort law, elder law, and intellectual property law are just some of the many different subject matter areas within the study of law. Attorneys often choose to specialize in a particular area of law simply because there are so many areas of study within the law. This section discusses the different types of procedural law. Procedural law deals with the processes that courts use to decide cases. Procedural areas of the law are designated to ensure due process, which means that all parties in a case are entitled to a fair and consistent process within the courts. There are three types of procedural law: Criminal Civil Administrative Civil Civil procedure deals with the procedures and processes that courts use to conduct civil trials. Civil trials concern claims between individuals. Substantive areas of law such as contract law and property law are civil law areas. The parties in these types of cases must follow civil procedure rules when bringing disputes to court. In the federal courts, a case begins when a complaint is filed with the court. A complaint is a court document that sets forth the names of the parties and the facts and legal claims. This is how a lawsuit begins. In the federal system, the rules outlining the civil trial process are found in the Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Federal Rules of Civil Procedure. These rules are made by the Supreme Court and approved by Congress. State courts also have rules for how civil trials are conducted. Often state rules are based upon the Federal Rules of Civil Procedure. These rules were last updated in 2018. NOTE The rules for civil procedure can be complicated. The Federal Rules of Civil Procedure has 86 regular rules (not including special rules for admiralty or maritime claims). Most civil trial cases must be proven by a preponderance of the evidence. This Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  is the lowest level of proof in a civil case. Preponderance of the evidence means that it is more probable than not that an action (or wrong) took place. Although it is simplistic to express this standard as a percentage, preponderance of the evidence means the probability of an action taking place is greater than 50 percent. Some civil cases, such as actions to terminate parental rights, use the “clear and convincing evidence” standard. To meet this standard, a party must convince a court that it is more likely than not that an action (or wrong) took place. Criminal Criminal procedure deals with the rules that courts follow in criminal law cases. It also includes the processes for investigating and punishing crimes. The federal and state governments have criminal codes. These codes specify the actions that constitute a crime. Crimes are wrongs against society and are prosecuted by the government against an alleged wrongdoer. The federal or state official with the power to pursue criminal cases is called a prosecutor. In the federal system, the rules outlining the criminal trial process are called the Federal Rules of Criminal Procedure. State courts also have rules for how criminal trials are conducted. Most states have rules that are modeled after the federal rules. Most criminal law cases are tried in front of a jury, which decides questions of fact. The judge’s role is to watch over the proceedings and decide questions of law. The standard of proof for most criminal cases is beyond a reasonable doubt. This is the highest level of persuasion that a prosecutor must meet. This burden is met when a prosecutor proves to a jury that there can be no reasonable doubt in the mind of a reasonable person that a defendant is guilty. The reasonable doubt standard does not mean that the reasonable juror is 100 percent convinced that a defendant is guilty. It does mean, however, that a juror must be fully satisfied that reasonable doubt has been eliminated. Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Burdens of Proof in the O.J. Simpson Trials The different burdens of proof for different types of cases can be confusing. The O.J. Simpson criminal and civil trials best illustrate the basic difference between criminal and civil law. In June 1994, Nicole Brown Simpson and Ronald Goldman were murdered. Five days later O.J. Simpson was arrested for those murders. Simpson pleaded “not guilty” to the charges in late July 1994. In October 1995, a criminal jury announced that it found O.J. Simpson “not guilty” of the murders. In May 1995, the Goldman family and Nicole Brown Simpson’s estate filed civil wrongful death actions against O.J. Simpson. In February 1997, the civil jury found Simpson liable for the deaths of Ronald Goldman and Nicole Brown Simpson. Finding a defendant liable in a civil case is the rough equivalent of a guilty finding in a criminal case. It means that the defendant is held responsible for the action that is complained about. O.J. Simpson was found “not guilty” of murder in the criminal case, but he was found liable in the civil case. The reason for the apparently inconsistent results is that the murder case was tried in the criminal system Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  and the wrongful death case was a civil action. There are different burdens of proof in each system. A government has such a high burden of proof to meet in criminal cases because a criminal penalty usually includes jail time, financial penalties, or even a death sentence. These penalties infringe on fundamental rights to liberty, property, and life. Therefore, a government may impose these penalties only with very strong proof that a person has committed the crime. Administrative Administrative procedure sets forth the process under which administrative agencies make and enforce rules. The federal government and most states delegate some regulatory and enforcement functions to administrative agencies. Governments delegate some of these functions in very detailed ways and for very specific reasons. When governments delegate power in this way, it is possible to have an agency that creates rules (a legislative function), enforces rules (an executive function), and reviews rules (a judicial power). Agency power is a combination of the power of all three branches of government. The actions of these agencies are the focus of administrative procedure. Because these agencies are carrying out a function of the government, there must be processes put in place to ensure that all persons appearing before agencies are dealt with in a fair and consistent manner. At the federal government level, the Administrative Procedure Act (1946) helps define the federal administrative process. This act states the procedures for agency rulemaking, enforcement, and review. The Administrative Procedure Act also allows U.S. federal courts to review agency decisions. There is a different burden of proof for administrative cases. In these cases, an administrative decision is valid so long as it is not “arbitrary and capricious” or an abuse of the law. An arbitrary and capricious decision is one made without a reasonable connection between the facts of the case and the administrative outcome. FIGURE 3-3 shows the burden-of-proof hierarchy in administrative, civil, and Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. criminal cases. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  FIGURE 3-3 Burden-of-proof hierarchy. Description Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. Grama, J. L. (2020). Legal and privacy issues in information security. Jones & Bartlett Learning, LLC. Created from westerngovernors-ebooks on 2024-12-03 00:09:07.  The Role of Precedent The doctrine of precedent is one of the most important traditions in the American legal system. This doctrine means that courts will look at the decisions made in prior cases to determine the appropriate resolution for new cases. For example, the U.S. Supreme Court has the power to decide cases that involve questions about the federal Constitution and other federal laws. The Supreme Court is the final authority on cases heard in the federal court system. If other, lower courts in the federal system have a new case that concerns an issue that the Supreme Court has already addressed, those lower courts are required to follow the law as it was interpreted by the Supreme Court. State courts also must follow the decisions of the U.S. Supreme Court to the extent that the state court is reviewing issues that include U.S. constitutional or federal law. NOTE A case of first impression is a case for which there is no precedent. These cases raise a legal issue that has never before been decided. The doctrine of precedent also is referred to as the doctrine of stare decisis, which means “to stand by things decided” in Latin. Stare decisis means that lower courts must follow the decisions of the court above it so long as those decisions are relevant to the case that the lower court is deciding. Without precedent and its related concepts, there can be no predictability in the law. Precedent makes the law stable. The U.S. Supreme Court has recognized the value of precedent numerous times. In 1932, Justice Louis Brandeis stressed the importance of precedent when he wrote, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”11 Precedent is used to ensure that laws are fairly and consistently applied. Copyright © 2020. Jones & Bartlett Learning, LLC. All rights reserved. The doctrine of precedent is not absolute. Precedent can change when it is apparent that society’s values on a particular issue have changed. Precedent also can change when a high court finds that the application of precedent is unreasonable. In Payne v. Tennessee (1991), Chief Justice William Rehnquist wrote, “Adhering to precedent is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than it be settled right. Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an