Chapter 1: The Historical Basis and Current

Structure of the American Legal System

I. The Historical Basis of American Law
A. Before the Government
a) For more than a century people clung to the methods of law and order known in Europe,
predominately in England.
b) Also accepted and sanctioned the prevailing attitudes toward religion under which
people were charged and punished by the government for committing acts regarded as
sinful and thus illegal.
2. As the American population grew, the British and other European governments increased their
effort to establish a formal and permanent influence in America. Attempts included establishment
of all aspects of foreign governments in the colonies.
a) Although willing to adopt many legal principles from England, many were not
interested in adopting a governmental structure that they thought was not responsive to the
will of the people, especially since this was the very structure they had sought to avoid by
coming to America.
3. During the revolutionary era, colonists realize that they had to establish some form of permanent
governmental structure if they were to avoid rule by another country.
a) Present-day structure derives from a combination of factors that influence those
responsible for establishing the American government.
b) Initially, colonists’ primary legal concern was to defer and punish criminal acts as a
means of maintaining order: sought to prosecute and punish those who committed crimes
against the morals of the predominately religious population.
(1) What was considered morally and religiously right was usually determined by
members of the aristocracy, it is no coincidence that the aristocrats were rarely
found guilty of immoral or criminal acts.
(2) Focus of early law in American society thus was an attempt by the aristocracy
to impress its perceptions of right and wrong upon the working classes and to
punish those who the wealthy and powerful perceived to be improper or sinful.
4. Original system of justice in America with a simplistic theory of right and wrong: colonists are
no need for written statutes, because this theory, known as naturalist theory, was based on the
philosophy that all persons know inherently the difference between right and wrong.
a) As population increased and cultures mixed. The justice system became obsolete since
individuals had different opinions of right and wrong.
(1) People required a more detailed legal system that included her in legal
principles applicable to a myriad of circumstances and the entire population.
5. Initially, each colony fought for control as an individual government without ties to other
colonies; but the colonists quickly realized that if any of the colonies were to succeed against the
attempts of the British and others to take control, the colonists must become united.
B. The results of the revolution
1. During the Revolution the colonies united and issued the Declaration of Independence. Though
difficult, the people succeeded and formed a central government made up of individual states.
a) This new government was guided by the Articles of Confederation.
(1) In short time call and is considered the Articles of Confederation and Congress
largely ineffective; national government had no “enforcement power.”
(a) A more organized system needed to be created.
b) Constitution was not past 11 years later in September 1787.
(1) The Articles bear little resemblance to the current Constitution.
c) Under the Articles, each state sent delegates as members of Congress. These delegates
pass laws, acted as judges in dispute among the states, negotiated treaties, and serve as the
government for the new nation.
d) The president’s duties were to preside over a session of Congress and act as an
ambassador to, and receive representatives of, other governments.
 e) All legal disputes with respect to the individuals continued to be dealt with by each
state’s own system of justice.
2. First issue in creating a permanent government was whether to allow the states to continue to
exist. Several delegates believe that the individual states should be abolished and that all people
and all legal situations should be governed by a central authority.
a) The idea failed because settlers were independent and sought to preserve as much
personal freedom from government as possible.
b) In the end, a government of separate state governments, and a national government with
specific functions was created.
(1) States were left intact because they could respond effectively and quickly to
the needs of their citizens and the individual state economies.
(2) National government was formed to protect the fundamental rights of all
citizens and ensure that the state governments would not prohibit individual rights.
(a) Also handle national issues such as interstate commerce, Indian affairs
and immigration, and international issues such as trees for trade and
nonaggression.
C. Establishment of branches of government
1. Constitutional Congress was convened in Philadelphia to create a structure for the new federal
government.
a) Result—the Constitution, which clearly defines the power and limitations of the
national and state governments with respect to each other and to individual citizens.
2. Constitutional Congress determined that there should be three distinct branches of government,
each with separate duties and all with obligations to cooperate with and monitor the other branches
to ensure that no one branch obtained too much power.
a) First branch—the legislative branch (Congress.)
(1) Elected by the people (directly for the House of Representatives, indirectly for
the Senate, which was elected by the state legislators until the 17 th amendment was
ratified in 1913).
(2) Congress retains the sole authority to make statutory law.
(a) This way, people as a whole would always have significant influence
in making the laws that all persons were required to follow.
(b) Only Congress can create statutory law- in the past, when any other
governmental source attempted to create statutory law, the law was struck
down as being in violation of what is known as the delegation doctrine.
(i) Delegation doctrine—based on the legal principle that
Congress cannot delegate or give away its authority to make
statutory law.
(a) Applied most often in creation of regulatory law by
administrative agencies under the executive branch.
b) Second branch—the executive branch.
(1) The president heads the executive branch at the national level, while each state
executive branch is headed by Governor.
(a) The president is elected indirectly by the people through the electoral
College.
(i) The president has several important functions with respect to
foreign affairs and has the ultimate duty to enforce the laws of the
United States.
(ii) Consequently, federal law enforcement agencies are
considered part of the executive branch.
(b) Each state is entitled to appoint a number of electors equal to the
state’s total number of senators and representatives to Congress.
(i) A person cannot serve as both a member of Congress and
collector.
(2) Generally, electoral vote reflects the popular vote. In the event there is no one
person with a majority, the House of Representatives are responsible for electing
the president.
 (a) The president has the power to approve or reject acts of Congress;
however, the power is not absolute, the president cannot deny the
authority of Congress to an outlaw it is in fact the will of the majority of
such a law be enacted.
(b) Veto Power—rejection by the president of a law enacted by Congress
and can only be overridden by a significant majority of Congress.
c) Third branch—the judicial branch.
(1) Designed to serve as mediators of disputes and has the authority to interpret
laws that protect children from violation by Congress, the president, or the states.
(2) Although the Constitution vests the ultimate authority to enforce laws in the
president, in fact, the judiciary also exists in force when the courts apply laws to
specific cases.
D. The Bill of Rights
1. In addition to the Constitution, Congress also passed the Bill of Rights—which protect all
citizens from government infringement on those matters presumed to be inherently personal in a
matter of choice for all human beings.
2. The branches of government were designed to provide a small number of persons gaining power
over the entire population.
a) By independent operation of the branches, but with the power of the branches to
influence one another, the people are better protected from one branch obtained too much
power or using its power unwisely.
(1) This is a system of checks and balances.
(2) The Bill of Rights establishes standards of fundamental fairness by which the
government must deal with its citizens. These standards of fairness have been and
continue to be protected by the U.S. Supreme Court.
E. Additional individual rights
1. In recent years, the Supreme Court has been increasingly asked to resolve issues that determined
the rights of persons to be free from governmental intrusion into the private lives.
a) I.E., from abortion to the rights of law enforcement to search and seize persons and
evidence of criminal activity.
b) From time to time, additional language regarding the Bill of Rights’ freedoms has been
added through the amendments to the Constitution as Congress and the people have
deemed appropriate.
2. Every time Congress passes a statue, the executive branch enforces the law, or the judiciary
interprets laws to be applicable to the situation or an individual, such action must be taken in
accordance with the requirements of the Constitution and its amendments.
F. The influence of political theories
1. The functioning of the branches of government and the manner in which these issues between
government and citizens are decided are the products of distinct philosophies that have influenced
the American legal system since its inception.
a) As Congress structured the new government, the naturalist theory became inadequate
and as a result of other theories regarding the establishment of an orderly society were
incorporated into the U.S. system of government and law.
(1) Positivist theory—political belief that there should be a superior
governmental entity that is not subject to question or challenge (the US Supreme
Court).
(a) The idea is that law cannot be questioned or challenged. If a laws is
violated punishment will automatically follow.
(2) Sociological theory—doctrine that follows the principle that government
should adapt laws to reflect the current needs and beliefs of society.
(a) In essence, a group determines what ease and what is not acceptable
based on the needs of society at the time.
b) In conjunction with the naturalist theory, positivists, and sociological theories provide
the components were successful and durable government.
G. Balance as a key to success
1. The US government is a product of each of the three political philosophies.
 a) The naturalist theory is reflected in the language of the Constitution and the Bill of
Rights, which (especially the Bill of Rights) state what was and continues to be considered
fundamentally fair.
b) The Constitution and the Bill of Rights also contain statements indicative of the
positivist idea of an ultimate authority to interpret the law and decide what circumstances
they apply and how they should be enforced.
(1) The ultimate rule has been embodied in the judiciary.
(a) Although laws can be challenged, the Supreme Court is generally the
final authority on legal issues.
c) The sociological theory plays an important role, because a society can influence the
government and the laws in a number of ways.
(1) People have the right to periodically elect representatives to Congress until
select the president.
(2) They have the right to approve or reject constitutional governments and certain
other laws.
(3) If society’s needs changes, the flexible system of government allows passage
of laws or election of representatives who will enact laws suited to the changing
times or both.
2. As a practical matter, citizens have more frequently, personal contact with the judicial branch
than with any other branch of government.
a) Since the beginning of the current system of government, courts have continually faced
the task of balancing competing interests.
(1) These interests are called the traditional balance in the modern balance, both of
which judges employ when determining legal claims
(a) Traditional balance—goal of the judiciary to allow maximum
personal freedom without detracting from the welfare of the general
public.
(i) Traditional balance equals the Rights of the People versus The
Rights of Individuals.
(b) Modern balance—goal of lawmaking authority to balance the need
for consistency and stability against the need for flexible and adaptive
government.
(i) Modern balance is very delicate.
(a) In essence, is the need to enforce existing legal
principles based on the Constitution first the need to
adopt legal principles more reflective of current society.
(ii) To write laws that would envision all potential situations and
changes in society for hundreds of years to come is an impossible
task.
(a) Thus the judiciary must be able to recognize the
situation for modifications and existing systems were
warranted.
H. The modern legal system
1. the first governor with a single Congress of senators and representatives from 13 colonies (the
Senate with two senators elected by each state legislature and House of Representatives members
proportionate to the population of each state), a president whose role was still not well defined
beyond basic duties listed in Article II of the Constitution, and a single court to serve as a judiciary
for the entire nation.
2. Today, Congress includes Senator and representatives elected by the population of each of the
50 states. The presidency had developed into the complicated office that not only represent this
country in foreign affairs but also oversees the administrative agencies of government and
approves reject all acts of Congress. The federal judiciary has grown to include three separate
levels: the Supreme Court, 13 U.S. Circuit Courts of Appeals, and more than 90 U.S. District
Courts.
I. The sources of law
1. The primary source of all on this country is the U.S. Constitution. Added to that, are the
constitutions for each of the 50 states.
 a) A common misconception is that legislatures—either state or federal (Congress) -- the
source of all laws.
b) In reality, legislatures are only one source of law.
c) Law, also known as a legal standard—legal principle, point of law. May appear in the
form of the statutory, judiciary, or administrative law.
(1) It can apply to people in general, or a particular group of citizens, or specific
person or entity such as a corporation.
d) Each state has a system of government similar to federal structure, and law at the state
level is created in much the same way at the federal level. The distinction is that a state
government is responsible for dealing with those issues not addressed by the U.S.
Constitution.
2. Statutory law—a statue. Law created by the legislature or by Congress
a) If a state legislature enacts a law, all persons and entities present in the state must obey
it.
b) Likewise, if Congress enacts a federal law, all persons in the nations are required to
follow it.
c) Once approved a stature would generally continue indefinitely as law until either the
legislature repealed (deactivates) it or the high court of the state or federal government
rules unconstitutional. Federal laws must be consistent with the U.S. Constitution,
whereas state laws must be in accordance with both the state and federal constitutions. No
state constitution can conflict with the U.S. Constitution. Provisions of the US
Constitution declaring federal laws take precedence over conflicting state laws known as
the supremacy clause. The language of statutes is fairly broad, because legislature wants
to include many potential situations possible when it sets down a legal standard of what is
right and what is wrong. If a court determines that a laws written so vaguely that that
citizens cannot determine exactly what is and what is not acceptable conduct, the law will
not be upheld as valid. Constitution guarantees the right to fair notice of what is
considered illegal conduct.
3. Judicial law -- opinions that have the effect of law and are issued by members of the judiciary
in legal disputes.
a) The judiciary interprets law from other sources.
b) They also create legal standards.
(1) They consider a statute and determine whether it was meant to apply to the
circumstances of a particular case.
(2) Persons in similar situations may look to the judge’s decision to guide their
own conduct.
(3) When no law exists, judges are responsible for making law or extending
decisions of judges in previous similar cases.
(a) The continuation of existing legal standards is the stability element in
the modern balance.
(b) Stare Decisis -- "let the decision stand." Method used by judiciary
when applying precedent to certain situations.
(i) When a court applies stare decisis and follows the same type of
ruling has issued in the previous similar case, it is following a
precedent -- existing legal standards to which courts look for
guidance when making a determination of a legal issue.
(ii) Courts generally attempt to apply stare decisis, with respect to
precedent unless the prior cases too dissimilar and facts or issues
or unless societal standards have changed since the precedent was
established, making the formal legal principle of the precedent
impractical. In such a case, the court does not employ stare
decisis but rules on the case based on new societal standards and
establishes a new precedent for future reference.
4. Administrative Law -- regulations into citizens that explain in detail statutes. Such regulations
and decisions are issued by the administrative agencies.
a) Although the legislature attempts to arrive at legal principles that apply to all persons,
the judiciary deals with individual circumstances.
 (1) In many sectors of our society and economy, large numbers of people are areas
of commerce meet specific guidelines.
(a) I.E., the airport transportation industry, which is overseen by the
Federal Aviation Administration (FAA). It is impractical for Congress or
even state legislatures to attempt to deal with all of the questions raised by
this massive industry.
b) The Constitution gives the duty for enforcement of law to the executive branch.
(1) Therefore, its primary responsibility is to determine when a law has been
violated or whether the law is even applicable to a particular situation.
(2) Administrative agencies are overseen by the executive branch with direct
influence by Congress and the judiciary.
(a) Administrative Law primary consists of two elements: administrative
regulations (sometimes called rules) and administrative decisions.
(i) Administrative agencies issued regulations are rules that more
specifically define the broadly written statutes.
(ii) Administrative decisions issued for very specific cases have
the same effect of law as judicial or legislative law.
Administrative Law is an extension of statutory law established
by Congress. Failure to obey administrative law can result in
penalties or even criminal prosecution.
J. The hierarchy of law
1. American law is governed by distinct hierarchy.
a) First in the hierarchy is the U.S. Constitution.
(1) Technically, the Constitution and its amendments are statutory law, they are
also considered superior to all other law, since they established the government
structure and the process for creating all other law.
b) Second in the hierarchy are the legislative (statutory) acts of Congress.
(1) Statutes have greater weight than judicial or administrative Law, since statutes
are enacted by Congress and state legislatures, which are composed of people
elected by the people.
c) Third in the hierarchy is the judiciary
(1) Has the authority to interpret legislation and fill in the gray areas where the
law is unclear or nonexistent. The judiciary is also obligated to ensure that the law
is consistent with the Constitution.
d) Last in the hierarchy is administrative law
(1) Administrative agencies assist Congress by issuing regulations and decisions
that clarify and aid in the enforcement of statutes.
(a) However, Congress has the right to eliminate an agency or regulations
that are inconsistent with legislative objectives.
(b) The judiciary also has the authority overrule actions of an agency
when such actions are unconstitutional.
(i) The authority of the judiciary to overrule and invalidate law is
not exercised lightly or frequently.
(ii) The courts generally defer to Congress, unless there is a clear
constitutional violation.
K. Ethical considerations
1. It is essential for the government to work as intended, and for the representatives of that
governmental structure to act and ethical manner. Knowing, however, that individuals are fallible,
the Constitution created a government based on a system of checks and balances that prevent any
one person or group of persons from gaining too much power over the government or the
population.
L. Ethical circumstances
1. In 1951, the 21st amendment to the Constitution was ratified, precluding any president from
seeking a third term of office by election. This effectively defeated the power of any individual --
whether peer and attend Orange paperless -- and gaining such a stronghold in the executive branch
of government.
II. John Ashcroft, Attorney General, petitioner, v. American Civil Liberties Union Et al. 122 S. Ct. 1700
A. Case presents question whether the Child Online Protection Act’s (COPA) use of "community
standards" to identify “material that is harmful to minors" violates the First Amendment.
1. The CDA prohibited the unknowing transmission over the Internet of obscene or indecent
messages to any recipient under 18 years of age. (See 47 U.S.C.§223 (a)).
2. Also forbade any individual from knowingly sending over or displaying on the Internet certain
“patently offensive” material in a manner available to persons under 18 years of age.
a) The prohibition specifically extended to “any comment, request, suggestion, proposal,
image, or any other communication that, in context, depict [ed] or describe [ed], in terms
patently offensive as measured by contemporary community standards, sexual or excretory
activities or organs.” §223(d)(1)
3. Supreme Court concluded that “the CDA, lack[ed] the precision that the First Amendment
requires when a statute regulates the content of speech” because, “[i]n order to deny minors access
to potentially harmful speech, the CDA effectively suppress[ed] a large amount of speech that
adults ha[d] a constitutional right to receive and to address to one another.” 521 U. S., at 874, 117 S.Ct.
2329.
a) Consequently, only the CDA’s ban on the unknowing transmission of obscene messages
survived scrutiny because it seemed speech enjoys no First Amendment protection. (See id.,
at 883, 117 S.Ct. 2329)
b) the District Court reasoned that because COPA constitutes content-based regulation of
sexual expression produced by the First Amendment, the statue, under this Court
precedents, was “presumptively invalid” and “subject to strict scrutiny.” Id., at 493.
(1) “[A]s a general matter, ‘the First Amendment means that government has no
power to restrict expression. Because of its message, its ideas, its subject matter,
or its content.’”
(2) However, this principle, like other First Amendment principles, is not absolute.
(a) I.E., Obscene speech has long been held to fall outside the purview of
the First Amendment.
(b) Court has struggled in the past to define obscenity in a manner that did
not impose on impermissible burden on protected speech.
(c) The Supreme Court in Miller set forth the governing three-part test for
assessing whether material is obscene and thus unprotected by the First
Amendment: “(a) [W]hether ‘the average person, applying contemporary
community standards’ would find that the work, taken as a whole, appeals
to the pertinent interest; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.” Id., at 24, 93 S.Ct.
2607 (internal citations omitted; emphasis added)
(3) Courts of Appeals, however, concluded that this Court's prior community
standards jurisprudence “has no applicability to the Internet and the Web” because
“Web publishers are currently without ability to control the geographic scope of
the recipients of their communications.” 217 F 3d, at 180. We therefore must
decide whether this technological limitation renders COPA’s reliance on
community standards constitutionally infirm.
(a) Absent geographic specific agents, a juror applying community
standards will inevitably draw on personal “knowledge of the community
or vicinage from which she comes.”
(b) Because juries would apply different standards across the country, and
Web publishers currently lack the ability to limit access to their sights on
a geographic basis, the Court of Appeals feels that COPA’s “community
standards” component would effectively force all speakers on the planet to
abide by the “most puritan” community’s standards.” F. 3d, at 175.
(i) And such requirement, the Courts of Appeals concluded,
“imposes an overreaching burden and restriction on the
constitutionality protected speech.” Id., at 177.
(4) The Supreme Court held that COPA’s reliance on community standards to
identify “material that is harmful to minors” does not by itself render the statute
 substantially overbroad for the purposes of the First Amendment. We do not
express any view as to whether COPA suffers from substantial over breach or
other reasons, whether the statute is unconstitutionally vague, or whether the
district court correctly concluded that the statute likely will not survive strict
scrutiny analysis once adjudication of the case is completed below.
III. Court of Appeals of Minnesota. Chancellor Manor, Appellant, v. Judy Gales. Et Al., respondents,
A. Opinion – Halbrooks, Judge
1. Appellant challenges the dismissal of its eviction action against respondents, arguing that the
trial court erred in finding that applicant did not suffer an adverse financial effect from its repeated
disputes with respondents as to warrant eviction under Department of Housing and Urban
Development Guidelines.
B. Facts
1. Appellant Chancellor Manor owns an apartment building in Burnsville and rents to respondents
Judy Gales and Rasheda Gales through a Department of Housing and Urban Development (HUD),
subsidized program.
a) Appellant has filed at least 68 late-rent notices and prior unlawful detainer/eviction
actions against respondents since October 1992.
b) Respondents always eventually paid the rent due and the penalties and other costs that
appellant could recover under the law.
2. Appellant filed the latest eviction action on October 25, 2001, after respondents failed to pay
rent for September and October.
a) Appellant instructed respondents to vacate the premises by November 30, pursuant to a
HUD provision in the leasing permitting eviction for repeated minor lease violations that
have an adverse financial impact on the program.
b) After receiving this notice, respondents paid rent for September, October, and
November.
(1) Respondents also tendered rent for December, but appellant rejected the
December payment because it wanted respondents to vacate by November 30.
3. Wendy Howell, site manager at respondent’s building, testified on the behalf of the appellant at
a bench trial.
a) Howell estimated that the eviction notice process takes approximately three hours, not
including any time spent in the ensuing court proceedings.
(1) Also testified that respondents paid all late fees and court costs that they owed,
but that appellant paid its own attorney fees.
4. While recognizing that the appellant uncured attorney fees from these disputes, the trial court
concluded that appellant could have avoided fees by having one of its employees represent it in
these actions. As a result, the court dismissed the case on the ground that appellant failed to prove
that it had suffered an adverse financial effect from respondents’ late payment.
C. Issue
1. Did the trial court err in finding that appellant did not suffer an adverse financial effect in its
repeated disputes with respondents?
D. Analysis
1. Appellant argues that the trial court erred in finding no adverse final effects when the record
shows a considerable time and expense incurred due to respondents’ repeated violations.
Appellant contends that its costs above and beyond those that they can legally recover constitute
an adverse financial effect. Respondents claim that the record supports the trial court's findings
because appellant recovered all those costs to which it is legally entitled and because the law
permits respondents to reading the property by paying the rent and the costs due. Respondents also
argue that the appellant is estopped from acting on respondents late payments because it failed to
follow through with prior threats to do so. HUD regulations apply to all participants in HUD-
subsidized housing programs. These regulations outline the conditions under which the landlord
may be the tenets. The relevant regulation, also incorporated into respondents’ lease, permitted a
landlord to evict a tenant for material noncompliance with rental agreement.
a) Material noncompliance is defined, in relevant part, as:
(1) repeated minor violations of the rental agreement that:
(a) disrupt the livability of the project,
 (b) adversely affect the health or safety of any persons or the right of any
tenant to the quiet enjoyment of the lease premises and rent project
facilities,
(c) interfere with the management of the project, or
(d) have an adverse financial effect on the project.
b) “Minor violations” include paying late.
(1) In that case, a tenant paid directly on 17 occasions in five years and a landlord
sought to evite under the HUD regulations set out above.
(a) Conclude that the late payment constitutes repeatedly in her violations,
but declined to address whether the late payments had in the first financial
effect working eviction because the parties had not presented that issue to
the District Court.
(b) Because there's no qualifications of threshold, we interpret “adverse
financial effect” to refer to all those affects adversely impact the program.
As a result, we conclude that the mission of costs resulting from preparing
more than 70 late rent and eviction notices me an adverse financial fact
that he is sufficient to meet the HUD standards.
(2) Because the plain meaning of the regulation contains no qualification or
threshold for “adverse financial effect,” the trial court error when it failed to find
that the appellant’s administrative cost meet the standard.
(a) The trial court error is twofold burst.
(i) First, the trial court made no findings regarding appellant's
omission of costs, despite ample evidence of the cost incurred.
Howell’s testimony regarding the time involved with filling more
than 70 late rent and eviction notices. Certainly satisfies any
accepted means of “adverse financial effect.”
(ii) Second, the trial court premised its holding them a believe that
appellant suffered no adverse financial effects because it
recovered all costs to which the law entitled to. But the HUD
regulation is concerned with the cost incurred, not merely the cost
of building comments it.
(a) Thus, although a landlord may recover all the costs
allowed under the law, it is possible, as happened here, a
landlord will suffer cost beyond those for which the law
compensates it.
(b) Note that the estoppel defense is not apply where, as
here, the family refused to accept the final rent payment.
A landlord need only refuse the final payment to protect
itself against any claim of waiver.