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 courtsthe 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 courtpreponderance
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 courtbeyond a
- 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
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
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
- 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
- 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,
- Law is an (invisibly) gendered discourse in which a masculine, patriarchal
perspective is established as a purely objective, rational, neutral, and
- 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
- 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
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).
Daniel McCarthy <email@example.com>
Barbara F. McManus
HON303/WMS303 Topics, Notes, Assignments