Show 02 - Law 101
Law 101 -- To better understand disability law, you must understand the basics of law. This podcast discusses the way law is made, and what kinds of laws are made by each branch of the government. You may remember learning in school that the three branches of government are the legislative (which makes the law), the executive (which enforces the law), and the judicial (which interprets the law), but that's only part of the story. We will look in detail at statutes, case law, and administrative regulations -- all of which are "law" and each of which is made by a different branch of the government.
Announcer:You are listening to the Disability Law Lowdown Podcast, show number two. And now the host, Jacquie Brennan.
Jacquie Brennan : Welcome to our podcast. This podcast is brought to you by the Disability and Business Technical Assistance Centers, DBTAC, which is a part of a network of ten centers funded through NIDRR that are for technical assistance and training regarding the Americans with Disabilities Act and other disability related laws. Today's podcast is called "Law 101" and the presenter is me, Jacquie Brennan. I'm an attorney who works with the DBTAC Southwest ADA Center.
This podcast is a new technology for us so we're starting the podcast series with a three-part legal series. This is the second of the three-part series. The purpose of this legal series is to provide a framework for you about how our government, law, and legal series all work together. When we get to describing other laws you'll have a foundation to understand the environment in which the ADA functions and thrives. I usually describe this as what you probably learned in high school government class and maybe forgot as soon as the final was over.
It might help to start of with a definition of "law". This is from the Black's Law Dictionary. It says law in it's generic sense is a body of rules of action or conduct prescribed by controlling authority and having binding legal force. It is that which must be obeyed and followed by citizens subject to sanctions and legal consequences.
So in our country the laws have many functions. Harold Cheeseman and Tom Goldman published a list of these functions in a law book. They say the functions include:
Keeping the Peace--that is, making certain activities crimes,
Shaping Moral Standards--exacting laws that discourage, say, drug or alcohol abuse,
Promoting Social Justice--which is enacting laws that prohibit discrimination in employment, for example,
Maintaining the Status Quo-- like passing laws that prevent the overthrow of the government,
Facilitating Orderly Change-- passing laws only after considerable study, debate and public input,
Facilitating Planning-- like designing commercial laws to allow businesses to plan their activities, allocate their productive resources and assess the risk they take,
Providing a Basis for Compromise-- approximately ninety percent of law suits are settled prior to trial, and finally
Maximizing Individual Freedom-- such as the rights of freedom of speech, religion and association granted by the First Amendment to the U.S. Constitution.
On the whole, the American legal system is one of the most comprehensive, fair and democratic systems of law ever developed and enforced. Even so, some misuses and oversights in our legal system, including abuses of discretions and mistakes by justices, judges and juries, unequal application of the law, and procedural errors do allow some miscarriages of justice.
American law is very flexible. It's also responsive to changes in society whether those changes are technological, cultural, economic or social. Often there are laws that stay on the books for many many years but then there's a change is society and so the law changes to conform with that. One example, we once had laws that allowed the forced sterilization of individuals with disabilities who were living in state institutions. Some of these laws were on the books until the 1970s. The laws were upheld as being Constitutional by the U.S. Supreme Court. But as society changed in its perception and acceptance of individuals with disabilities and as advancements were made in medicine, it eventually became unacceptable to force sterilization on individuals who did not understand what was being done. Then the same laws that were constitutional years earlier became unconstitutional.
Another example is in regard to women's rights. Women were denied the right to vote until 1920. Women fought for, were arrested for, endured horrible treatment by law enforcement for, and even died for the right to vote. Before 1920 it was constitutional to have such prohibitions. After 1920, it was not. The law changed to conform with changes in society.
Sometimes it's the other way around; the law leads society to change. The best recent example of that is Brown vs. The Board of Education. Before that case was decided "separate but equal" was the prevailing doctrine which allowed children of different races to be in separate schools. Of course, the whole doctrine of "separate but equal" was a fallacy that never quite lived up to those words, especially the word "equal". But when the Supreme Court struck down the doctrine in 1954, it lead the way for a change in society that brought people together rather than separating them according to race.
We have so many laws here in America. Go to any law library anywhere and you'll be astonished by the number of books that have nothing but laws written in them. Even so, we cannot possibly anticipate every possible set of facts so that a law can be written for each and every possibility. So laws are written often as general principles to be applied by courts and juries in individual cases. This flexibility in the law prevents people from being able to predict the outcome in any particular case.
Let's talk for a moment about the history of american law. Back when the american colonies were first established, long before we had independence from Great Britain, the colonies adopted the english system of law. This is basis from which judges in the colonies began to develop a common law. Common law is law created by judges who publish their opinions when they decide cases. These opinions then become precedent for later judges and other courts when they decide cases with similar facts. So now we have more than two hundred years of laws that have been developed in the United States. People tend to think about laws as just the laws passed by Congress or by state legislature, but there are many kinds of laws and they come from many different parts of the government.
Okay, this is where we go back to your high school government class or, if you're lucky, you can even remember back to when you learned this stuff in elementary school. You learned there are three branches of government: the legislative, the executive and the judicial. The U.S. Constitution set it up like that, and because it was easiest to teach it this way, you probably learned the functions of each branch like this: the legislative branch makes the law, the executive branch enforces the law and the judicial branch interprets the law. That is absolutely true, as far as it goes. But the truth is, each branch makes laws. They make different kinds of laws. That's what we're going to talk about next.
If you listened to the first podcast in this series, then I hope you remember that the fundamental law of the United States upon which all future laws are based and with which no future law can conflict is the United States Constitution. The Constitution is the supreme law of the land. It's often called a living document which means it's broad in scope so it can evolve with a changing society. And really that's one of the things I love most about the law, it is both stable and fluid at the same time.
Each state has its own constitution, it's own fundamental law, too. As long as no provision in any state's constitution conflicts with the United States Constitution or any federal law, then the state constitution is valid.
But of course there are lots of other laws besides the Constitution. The most common type of law and what people are usually thinking of when they say the word "law" is codified law. That's also called statutes or codes, not "statues" which are like monuments, but "statutes" which are laws that are written down, passed by congress and signed by the President. Federal statutes include tax laws, security laws, bankruptcy laws, labor laws, employment discrimination laws, disability discrimination laws, civil rights laws, consumer protection laws, environmental protection laws, antitrust laws and, of course, many many many others. Those are all federal laws.
At the state level, states legislatures enact state statutes which cover things like corporation law, partnership law, contracts law, public safety laws, torte law workers compensation laws, human rights laws, state tax laws and many many many others. State legislatures usually delegate lawmaking authority to local governments including cities, counties, municipalities, school districts, water districts and similar entities. These governments have the authority to enact ordinances which typically deal with things like traffic laws, local building codes and zoning laws. Ordinances are another example of codified law.
So how does an idea become a law? For those of you who do not remember your Schoolhouse Rock, "I'm just a bill, I'm only a bill and I made it up to Capitol Hill." You're just lucky I didn't try to sing it. Anyway, this is the process of how that happens. First, there has to be an idea. Maybe some people have an idea and they want there to be a law, so they go visit their Congress member who agrees, slams his hands down on the table and says, "you're right! There ought to be a law!".
So the Congressperson writes it up and introduces it to Congress. To make it simpler, let's say this person is in the House of Representatives with four hundred thirty-four other Representatives. Maybe he asks a couple of others to cosponsor the bill, just to make it stronger. The bill is given a number, the sponsors' names are attached to it and it gets sent to the Government Printing Office. Then it's assigned to a committee. Comments about the bill's merit are requested from government agencies. Bills can even be assigned to a subcommittee by the chairman of the committee. Hearings may be held and then eventually the subcommittee will report their findings to the full committee. Finally, there's a vote by the full committee. The bill is ordered to be reported. The committee will hold a mark-up session during which it will make revisions and additions. If substantial amendments are made, the committee can order the introduction of a clean bill which will include the proposed amendments. This new bill will have a new number and will be sent to the floor while the old bill will be, well, discarded.
The chamber must approve, change or reject all committee amendments before conducting a final passage vote. After the bill is reported, the committee staff prepares a written report explaining why they favor the bill and why they wish to see their amendments, if any, adopted. Committee members who oppose the bill sometimes write a dissenting opinion in the report. The report is sent back to the whole chamber and is placed on the calendar.
In the House, most bills go to the Rules Committee before reaching the floor. The committee adopts rules that will cover the procedures under which the report will be considered by the House. A closed rule sets strict time limits on debate and forbids the introduction of amendments. These rules can have a major impact on whether a bill passes. If a bill makes it out of committee, and many bills never do, then it heads to the floor (are some of you humming "I'm Just a Bill" in the background now?). The bill gets on the calendar and then it's debated on the floor.
Eventually, the bill gets voted on. If it passes, then it still isn't a law yet. Then it has to go over to the Senate and go through the whole process again. Sometimes the other chamber will have a similar bill that it passed in which case both versions of the bill will go to a Conference Committee to work out a compromise for the differences. Once both chambers of Congress approve the bill then it still isn't a law.
It gets sent to the President for his signature. The President can sign it, which makes the bill a law or, if the President does not sign it, then in ten days, if Congress is in session, it becomes a law without the President signing it. The President could also veto the bill. If he does that, then it goes back to Congress with the President's reason for the veto. Congress can change the law or it can override the President's veto with a vote of two-thirds of the members present in each chamber. Who out there remembers what a pocket veto is? That's when the President doesn't sign it and doesn't veto it, but just lets it sit for ten days. But that works if, and only if, Congress is not in session at that tenth day. If Congress is in session, then letting it sit for ten days results in the bill becoming a law. If Congress is not in session, then letting it sit for ten days results in what is called a pocket veto.
So that's how a bill becomes a law or a statute. So we have statutes now and we have the Constitution, but what other kinds of laws are there? Well, there are treaties. Treaties are laws. Treaties are compacts that are made between two or more nations. Treaties are made by the President which is, of course, the executive branch with the advice and consent of the Senate in the legislative branch. If the President makes what is essentially a treaty but does so without the advice and consent of the Senate, then it isn't a treaty. It's called an executive agreement. Treaties, once they are ratified, become part of the supreme law of the land. And, while we're on the executive branch, there are also executive orders which are legally binding edicts issued by the President that have the power of law.
There's another kind of law that is written by administrative agencies which are part of the executive branch. These laws are called regulations or implementing regulations. Both the legislative and the executive branches of federal and state governments are empowered to establish administrative agencies to enforce and interpret statutes that were passed by Congress and state legislatures. Congress has created a world of these agencies, including the Federal Trade Commission, the Federal Aviation Administration, the Federal Communication Commission, the Environmental Protection Agency, the Equal Employment Opportunity Commission, the Securities and Exchange Commission, the Internal Revenue Service, the Food and Drug Administration, the Social Security Administration, and many many, oh so many, more.
The administrative agencies adopt rules and regulations to interpret the enabling statues that the agency is authorized to enforce. These rules and regulations have the force of law. Administrative agencies usually have the power to hear and decide disputes in administrative hearings. These agency decisions in these hearings are called orders. Because of their power, administrative agencies are often called the Fourth Branch of government.
The last kind of law we will discuss is case law which is also called common law which is the kind of law made by the judicial branch. These are really judicial decisions or opinions that are issued by federal and state courts. These opinions are written by the judge or the justice and they explain the legal reasoning that was used in deciding the case. These opinions often include interpretation of statutes, ordinances, administrative regulations, and the legal principles used to decide the case. These past court decisions become precedent for deciding subsequent cases. Lower courts must follow the precedent set by higher courts in the same jurisdiction. Adherence to precedence is called stare decisis. It means "to stand by the decision". Stare decisis promotes uniformity of the law within a given jurisdiction, make the court system more efficient, and makes the law more predictable for individuals and businesses.
So that's it for the law in this podcast. The third and final podcast in this series will cover the federal court system. In the meantime, if you have any questions about disability law, contact your ADA Center DBTAC by calling 1-800-949-4232 or find us on the web at dbtac.vcu.edu.
Have a dazzling day!