American Law and Legal Systems
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American Law and Legal Systems

James V. Calvi, Susan Coleman

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  1. 416 pagine
  2. English
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eBook - ePub

American Law and Legal Systems

James V. Calvi, Susan Coleman

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American Law and Legal Systems examines the philosophy of law within a political, social, and economic framework with great clarity and insight. Readers are introduced to operative legal concepts, everyday law practices, substantive procedures, and the intricacies of the American legal system. Eliminating confusing legalese, the authors skillfully explain the basics, from how a lawsuit is filed through the final appeal. This new edition provides essential updates to forensic and scientific evidence, contract law, and family law, and includes new text boxes and tables to help students understand, remember, and apply central concepts.

New to the 8 th Edition

  • Updates the coverage of environmental law, especially in relation to climate change.

  • Updates the coverage of family law, especially in relation to gay marriage.

  • Includes new coverage of challenges to the Voting Rights Act, campaign finance, and cybersecurity.

  • Covers the effects of social media on judicial proceedings.

  • Includes 16 new cases, including Obergefell v. Hodges.

  • Adds new text boxes on intriguing subjects throughout.

  • Accompanied by an author-written Instructor's Manual that includes Learning Objectives, Chapter Summaries, Chapter Outlines, Key Terms and Concepts, as well as Test Questions for each chapter.

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In order to understand the American legal system one must first come to terms with the question: What is law? Americans have always had ambivalent feelings about law. Our rhetoric is full of noble ideals such as “equal justice under law” and the “rule of law.” We pride ourselves on having a “government of laws, not men,” and on the assertion that “no one is above the law.” At the same time, disregard for the rule of law has been part of our political tradition. We are a nation born of violent revolution, and during our frontier period, vigilante groups sometimes took the law into their own hands.1 Between the time the first organized vigilante group made its appearance in South Carolina in the 1760s and the early 1900s, 729 people were executed by such groups.2 Civil disobedience is the belief that a person has a moral right to disregard an unjust law. Recent history has seen Americans debate the role of civil disobedience in the civil rights, animal rights, abortion, and anti-nuclear movements. In the 1960s, some elements of the radical left believed that ending the war in Vietnam or achieving civil rights for African Americans justified the use of violence. More recently, the more extreme members of the radical right have used similar arguments to justify violence against abortion clinics. A recent manifestation of vigilantism is the border militia groups’ anger and frustration at the U.S. government’s inability to stem the tide of illegal immigration into the country.
In many ways, the questions we ask ourselves about the nature of law are the same ones we ask about our political system and about society at large. How do we account for the conflicting attitudes Americans have toward law? How can persons who are law-abiding one day turn into a lynch mob the next? How can a nation founded on the basis of its citizens’ “inalienable rights” systematically deny those rights to African Americans and other minorities? How can we explain these contradictions? The answers to these questions are not easy, but we can begin to understand the paradox by understanding the nature of law both in general terms and in American society specifically.
In this chapter we will focus on several aspects of law in the United States. First, we will examine the functions of law in society. Second, we will discuss the source of law in society in order to help us understand why people do or do not obey the law. Next, we will define the different kinds of law in our legal system, with examples of the various forms the law takes. Finally, we will conclude with a case study of Bob Jones University v. United States, which illustrates a number of the chapter’s major points.


People tend to place far too much emphasis on the negative aspects of law. Many view the law as a list of things they are forbidden to do. Perhaps this attitude is only natural given our socialization. As children we were often told, “Don’t do this” and “Don’t touch that,” so it is understandable that our first contact with authority has negative connotations. Law, like the restrictions placed on us by our parents, defines the boundaries of acceptable and unacceptable behavior. But law is more than just a list of forbidden activities; it touches every aspect of our lives and should be viewed as a positive force. The following are some of the functions of law in our society.

Law Bestows Benefits on People

One of the positive aspects of law which perhaps we seldom consider is that it bestows benefits on people. Government, no matter what its form, uses its lawmaking power to determine who receives certain benefits and who does not. Laws deciding eligibility for programs like Social Security, family assistance benefits, unemployment compensation, and student loans are just a few examples; laws determining who may operate an automobile, practice law, sell real estate, or receive tax deductions are some others. Law is thus closely connected to the political system because it is government that determines “who gets what, when, and how.”3 The law becomes a major focus of interest groups that try to secure the passage of laws beneficial to them while blocking the passage of those that harm their interests. Finally, it is the government’s ability to meet the demands of interest groups and its fairness in allocating benefits that provide an important measure of governmental effectiveness.

Law Creates New Programs

The next function of law is closely related to the previous one. Government, by passing laws that bestow benefits, must create both new programs and the bureaucracies to administer them. Programs such as flood control, crop insurance, student loans, and highway construction by their very nature benefit people in varying degrees. Some programs, like highway construction and flood control, are seemingly for the general welfare but also bestow benefits (big profits) on highway contractors and insurance companies. Battles between the president and Congress over the nation’s budget are actually struggles over the funding levels of new and existing programs that have been created by the government.

Law Reflects Society’s Values

Interest groups do not use the law just to promote their selfish economic interests. Law also has important symbolic value in our society. Interest groups, like pro-life and pro-choice groups, want the law to promote (others say impose) certain values that they cherish in society. This is why some people and groups are willing to work to promote school prayers, ban flag desecration, and prohibit same-sex marriages. It is why others are equally willing to push for separation of church and state, freedom of expression, and tolerance of individual lifestyles. People on both sides of a controversial issue believe it is important for the law to reflect the correct view—which, of course, means their view of public policy. This eagerness of groups to see their views reflected in the nation’s laws occupies the major portion of political debate in a country.

Law Proscribes Certain Activities

As we have noted, much of our thinking about law centers around what we may not do. Law forbids behavior that causes harm to other people or to their property. Some behavior is termed malum in se, or “wrong in itself.” Consequently, the law forbids homicide, sexual assault, arson, theft, and other forms of antisocial behavior. There are also laws banning activities that, while not harmful in themselves, are forbidden simply because society disapproves of them. Neither parking in a “no-parking” zone nor letting the parking meter expire is really wrong in itself, but both are against the law. These are examples of malum prohibitum—acts that are wrong merely because they have been prohibited by government. Some forms of behavior—such as prostitution and physician-assisted suicide—are debatable as to whether they are wrong in themselves or simply wrong because a majority in society thinks they should be prohibited. Finally, not all proscribed activities are criminal in nature. Law proscribes how an individual may use his or her property if by using it they cause harm to others. For example, a property owner whose land use produces offensive waste, water pollution from practices such as fracking, or animal odors may be ordered to stop whatever is causing the problem. In any case, it is only by banning and punishing certain activities that people can live together in society in relative harmony.

Law Provides Predictability

One final function of law is to provide a measure of predictability so that we can conduct our affairs with some certainty. Contract law is a good example of law fulfilling the need for predictability; without contracts enforceable in courts, businesspersons could not conduct their affairs. We also seek predictability because we want some assurance that those in power will not act toward us arbitrarily. For example, due process is the requirement that a criminal law cannot be “void for vagueness.”4 Some Supreme Court justices, for example, have expressed concern over upholding pornography laws when the Court itself has such difficulty defining pornography.5 They argue that it is unfair for the law to punish a person unless it can clearly define the prohibited behavior. Lawyers want some assurance that the law governing the outcome of yesterday’s cases will serve as guideposts for today’s decisions and tomorrow’s cases. That assurance is why lawyers so eagerly look for precedents (i.e., cases previously decided) when presenting cases. Lawyers hope that such precedents will help guide the judge’s decision and make the outcome more predictable.
Despite the comforting assurances of predictability that we seek in the law, there is, paradoxically, unpredictability as well. Professor Lief Carter reminds us that if law always predicted the outcome of disputes, people would never go to court. When the law fails to predict the outcome of a dispute and both sides believe they have a chance to win, lawsuits follow.6 Carter notes that the use of ambiguous wording in statutes and court opinions is one reason for the unpredictability of law. Phrases such as “due process of law” and “beyond a reasonable doubt” illustrate the ambiguity of the language of law.7
These functions of law give us some clues about the nature of law by making us aware of its purpose for a society. Law may be seen as a battle for scarce resources, as a way of organizing society, or as a source of predictability and stability. But understanding the functions of law in society is not enough. Another important aspect of law is the source of law in a society. We now turn our attention toward understanding why people obey the law.


It is because law performs such important functions that it becomes necessary to examine the source of law in society. The source of law concerns not only the legitimacy of the law in the eyes of the people but also the legitimacy of the lawmaker. In an absolute monarchy, the will of a single individual and the law are one and the same. In the film The Ten Commandments, the Pharaoh had only to say, “So let it be written, so let it be done,” and his word became law. How can the will of a single person be so readily accepted by others as binding? In other words, from where did the Pharaoh derive his power, and why did his people obey him?
The answer to why humans obey can be as varied as humans themselves, but generally the reasons can be reduced to two, people obey either because they believe that they should or because they are afraid not to. Compliance with the law is much easier to effect if the lawmaker can convince the people that he or she has the right to make the law. In some societies (e.g., ancient Egypt and pre-World War II Japan), the lawmaker was seen as a god. Thus, people obeyed the Pharaoh and the Japanese emperor out of both religious respect and fear. During the Age of Absolutism in Europe, the theory of the divine right of kings governed people’s thinking about the source of the king’s power. In Roman Catholic theology, the Pope was chosen by God to be the “Vicar of Christ” on earth and was considered to be infallible in matters of Church doctrine. Similarly, people believed that the king was chosen by God to rule over them in secular matters. Just as the Pope was infallible in Church matters, the belief that “the king can do no wrong” was based on the belief that God had chosen the king and guided him. But what if the king should suffer the misfortune of being dethroned? Did this disprove the theory that the king was king “by the grace of God”? No, because in the Bible, as everyone knew, God replaced Saul as king of Israel with David when Saul displeased Him.8 As a result, all law, spiritual and temporal, was inspired by God, and to disobey God’s earthly representative was to disobey God Himself; the punishment was eternal damnation, a powerful penalty in the minds of medieval people.
Law, as understood by medieval thinkers, came from God and was considered to be eternal and immutable. During the Age of the Enlightenment, however, both religious and political thinkers began to challenge the absolutism of popes and kings. The idea developed that the lawmaker received his authority not from God by virtue of his fortunate birth but from the consent of the governed. Thomas Jefferson incorporated the concept of natural law into the Declaration of Independence when he invoked the notion that persons are endowed by their Crea...

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