Basic Legal Concepts: Notes

Law and Courts:

Common Law: The United States legal system is based on the common law system inherited from England, which develops a system of law through the case-by-case decisions of judges. Thus common law is primarily made by judges rather than legislators, is based on precedent (judges make their decsions based on previous rulings in appellate and supreme courts—the higher the level of the court, the more important the precedent), and is not codified (there is no one place where the whole law is written down). The types of law that the judges interpret are called

• statutory law: the laws passed by local, state, and federal legislators to regulate the conduct of individuals, businesses, etc.
• constitutional law: this applies only to the government and agents of the government. The US Constitution outlines the powers of the government and the rights of the people against the government. Judicial Review: any statutory law that the US Supreme Court determines is in conflict with the Constitution must be rendered null and void; it cannot be enforced.

Civil and Criminal Law:

• Proceeding in Civil Court:
  • plaintiff initiates through a lawsuit
  • defendant has no right to a publically-paid lawyer
  • standard of proof is lower than in criminal court—“preponderance of the evidence”
  • penalties are usually economic (monetary fines paid to plaintiff)
• Proceeding in Criminal Court:
  • state initiates through an indictment
  • defendant has right to counsel; attorney will be paid at public expense if defendant cannot afford a lawyer
  • standard of proof is higher than in civil court—“beyond a reasonable doubt”
  • penalties involve temporary or permanent loss of some or all of the privileges of citizens (e.g. imprisonment, death, etc.); lesser penalties may involve fines paid to the state and/or mandated public service. Anyone convicted of a felony permanently loses the right to vote or hold public office.

Dual Court Structure:

• State Courts from the lowest to the highest: trial courts, appeals courts, supreme court
• Federal Courts from the lowest to the highest: district courts (try cases involving alleged violations of federal law, multi-state civil cases, suits against federal agencies), appeals courts, US Supreme Court (hears appeals from decisions of state and federal appeals courts and and also hears original jurisdiction cases)

Fourteenth Amendment: Section 1 of the Fourteenth Amendment to the Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Cornell's Legal Information Institute provides an equal protection overview.

The Equal Protection Clause prohibits state and local governments from unreasonably excluding any class of citizens from the same privileges and protections extended to other citizens. The Supreme Court has identified several standards of review for this clause:

• Rational Basis: This is the usual standard, under which state or local governments have only to demonstrate that the classification is rationally based and serves a legitimate governmental interest.
• Intermediate Scrutiny: Under this heightened scrutiny, the government must prove that there is a substantial relationship between the classification and an important governmental purpose.
• Strict Scrutiny: Any law or regulation which classifies people on the basis of a “suspect classification” is subject to strict scrutiny, which means that the burden of proof is on the government to prove that this classification is the least restrictive way to serve a “compelling public interest.”
• Suspect Classification:
  • Do people in this class have an inherent trait?
  • Is this trait highly visible?
  • Has this class of people been disadvantaged historically?
  • Has this group historically lacked effective representation in the political process?
• The Supreme Court has thus far officially included as “suspect” only classifications based on race, religion, or national origin, though classifications based on sex are sometimes unofficially treated as suspect. The standard for examining classifications by sex is usually termed “intermediate or heightened scrutiny.” Had the Equal Rights Amendment passed, it would have officially included sex among the suspect classifications. A study by Wolfgang Hirczy, “Does an Equal Rights Amendment Make a Difference?” (requires Adobe Acrobat reader), concludes that the 1972 Equal Rights Amendment in Texas, which subjected classification by sex to strict scrutiny, has been an effective weapon against sex discrimination, not only for women but also for men.

Insights from Zillah R. Eisenstein. “The Engendered Discourse(s) of Liberal Law(s).” The Female Body and the Law. Berkeley: University of California Press, 1988. 42-78.

Law is a form of discourse, midway between the “real” and the “ideal,” which both constructs and reflects the social and political realm.

• Law is not just specific regulations; it is also an interpretive language that establishes expectations of what is considered legal, honorable, rational, and objective.
• Law is an (invisibly) gendered discourse in which a masculine, patriarchal perspective is established as a purely objective, rational, neutral, and natural norm.
  • Law recognizes duality (right or wrong, guilty or innocent, win or lose) rather than diversity.
  • Social law, constructed according to “natural law,” sets up sex (which is assigned moral, practical, and psychological meanings) as the primary way to classify persons.

Legal notions of equality of men and women are full of tensions and contradictions, particularly those associated with the following two conflicting standards:

• Special Treatment: Women are classified by sex, as different from men. When this standard prevails,
  • “Real differences” are alleged to justify differential treatment; women are not considered as “similarly situated” to men.
  • This may work to the advantage of women (as in affirmative action laws or the provision of special training programs for women; see this list of cases involving so-called “benign discrimination”) or to the disadvantage of women (as in “protective” legislation that excludes women from certain tasks or occupations on the basis of their biology or concepts of their nature).
• Sameness: Women are treated as the same as men, as exactly like men (though men are always the defining standard). When this standard prevails,
  • Legal equality takes no cognizance of social and economic inequalities (e.g. no-fault divorce laws assume men and women have equal earning potential).
  • Women disappear in the classification system (e.g., it is not considered sexually discriminatory to give special privileges to veterans because the classification is between “veterans and nonveterans”; no attention is paid to the fact that the combat exclusion until very recently made it impossible for women to become veterans).