Thursday, February 23, 2017

Chapter 10 (Chapter Summaries) "Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources" in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and Chapter 10 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Chapter 10

Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources

A. Introduction

B. Problem 10
--Southland Corp. v. Keating
--American Express Co. Et Al. v. Italian Colors Restaurant

C. Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources
--Altria Group v. Good
--Notes and Questions
--A Note on Legalization of Hierarchies of Law Through Statutes
--Constitution of the United States
--Indiana Code
--Notes and Questions
--PruneYard Shopping Center v. Robins
--Notes and Questions
--German Basic Law
--Constitution of South Africa

           D. Learning Objectives
A. Introduction

The first two chapters of this Part III considered the relationship between law, the state, and the government. In Chapter 8, the student was introduced to two different perspectives on the relationship between law and government. The first posits a close relationship and at it limit an identity between law and the government. The consequence is a tendency to view the legitimacy of law as a function of its production by a legislative or administrative organ of state. The legitimacy of law, then is a direct function of the legitimacy of government. The second understands law as distinct from the government, and that government manages (and sometimes directs) but is not identical to law. The legitimacy of law may be affected by but is not dependent on the legitimacy of government. We noted that the U.S. legal system seems to borrow a bit from both views, though it has yet to reconcile them in any meaningful way. The grounding premises of common law and equity, and of the higher law of the constitution, all posit that law emerges from the people, their customs, traditions, and mores. The tending of these choices (through courts) becomes a responsibility of the state. At the same time that higher law of the constitution is grounded in premises that the government is instituted to speak for the people and to act on its behalf, including by exercising the power of legislation and oversight. In this form the authority of law is entirely grounded on the authority of other state to enact and enforce it.

Chapter 9 then considered issues of order in the relationship between the state and law. Whether identified with or administered through the state, law must be ordered and principles developed to ensure its legitimacy. The legal system must be made coherent. And it is to that end that government undertakes one of its most important responsibilities. This is all the more so within the American Republic where multiple legal sub systems must not only coexist but must interact in ways that enhance the operation of all of them together as system. Those considerations are organized around the idea of “rule of law.” Rule of Law is a means of framing the core objectives students considered in Chapter 2—fairness, predictability, and certainty. At its broadest level, rule of law has become a means of expressing the principles of the legitimate political organization of states and the defining of the scope and substance of their responsibilities. In the U.S., rule of law embraces three broad principles—the supremacy of law, the equality of individuals under law, and the constitution of government as a vehicle through which law is expressed and administered. Through these principles it is possible to organize a government under law to which the power of lawmaking is delegated, which may be exercised only to the extent that power is invoked through law. Chapter 9 then considered the two principle expressions of rule of law in U.S. law. The first touched on issues of fairness through law as a constraint on administrative discretion to deprive an individual of life, liberty, or property. The second considered the way rule of law was used to develop legal constraints on the power of the government to make or apply law.

Having considered the distinction between “law” systems and “government” institutions and their quite distinct “systemicity” through law within the concept of rule of law, this chapter turns to an issue implied in rule of law—the issue of law system coherence. The object is to get the student to begin to think about what goes into the construction of a coherent system of law managed by a government, focusing not on an individual “law” but on law as a system administered through the state. What that requires is the development of notions of hierarchies of law, and the relationship between those hierarchies and the power of the state to manage them. That is the central focus of this Chapter 10—the development of hierarchies of law and the role of the government in its administration.

For that purpose the student will consider two questions around which the materials in this chapter are organized: is it possible to rank order these sources of law to determine which one is more authoritative than others; what is the relationship between constitutions, statutes, treaties, regulations, judicial decisions, and other sources of law? The student will consider how political communities rank laws—from constitution to statute, judicial decision, and regulation. She will also consider how government, principally through its courts in the United States, then develops rules for dealing with conflicts of hierarchy among legal systems when more than one appear to apply to the resolution of a dispute. That discussion serves as the basis for considering the underlying normative framework that produces these vertically arranged systems of law. The student will understand the theories used to justify hierarchy and explain why, for example, constitutional law is superior, or of a different character, from ordinary law. 

Learning Objectives:
(2) The student will be introduced to the elements of a coherent system of law that is managed by a government focusing on law as a system rather than on individual laws. 

(2) The student should be familiar with issues of hierarchy of law and how they are built into constitutional orders by considering the United States Constitution, German Basic Law, the Constitution of South African, and the Indiana Code. 

(3) The student should be familiar with how courts develop rules for dealing with conflicts of hierarchy among legal systems when more than one appears to apply to the resolution of a dispute.

(4) The student will work through a problem dealing with the FAA, Southland Corp. v. Keating, and American Express Co. v. Italian Colors Restaurant, to determine to what extent federal law preempts state law.

(5) The student will examine the difference between first, second, and third generation constitutions through a reading of the US Constitution, the German Basic Law, and the South African constitution and understand the different approaches to the hierarchy of law within these systems.

(6) The student should be exposed to an illustration of the usual hierarchy of law in federal and state systems through a reading of state codifications of legal hierarchies.

(7) The student should be familiar with the doctrine of preemption, both with the expression of the doctrine and its application against the law of a state through a reading of Altria Group v. Good.

(8) The student will be introduced to the limits of federal authority to shape or constrain state law through a reading of PruneYard Shopping Center v. Robins.

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