2015 JD Orientation Program

Welcome!

A Little About Me

Mark LathamDeputy Vice Dean for Academic Affairs

& Professor of Law

Overview of the U.S. Legal System

Learning Objectives• Gain further understanding of:oThe four branches of government oThe sources of U.S. lawoThe regulatory processoThe role of the courtsoFederal v. state courtsoFederalism concept

The Three Branches of Government, Plus . . .

The Fourth Branch:

Administrative Agencies

U.S. Sources Of LawConstitution

Statutes

Regulations

Cases (common law)

Three Types of Powers under the U.S. Constitution

• Enumerated powers• Reserved powers• Concurrent powers

Enumerated Powers“The Congress shall have Power To lay and collect Taxes … To borrow Money … To regulate commerce … To coin money … To establish Post Offices … To declare war …”

U.S. Const. Article 1, sec. 8

Reserved Powers“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

U.S. Const. amend X

“Concurrent” Powers Powers that both state & federal government have the authority to exercise...

Examples: • Set up judicial systems (more on this…)• Collect taxes (two forms at tax time)• Build & maintain roads (I-95 v. VT Route

14)

Statutory Law • Statutes are written laws that generally either:

1)require some action; 2)prohibit certain conduct or 3) establish an agency

• Federal Statuteso Enacted by Congress o E.g., Tax Code, the Securities and Exchange Act of 1934, Clean Water

Act, Computer Fraud and Abuse Act, Affordable Health Care Act

• State Statuteso Enacted by state legislatures o E.g., Vermont’s drunk driving statute or building code

• City and Municipal Ordinances o E.g., leash laws, zoning laws, etc.

Regulations: The Rulemaking

Function of Administrative Agencies Congress Statutes Agency Regulations (Creation & Delegation)

Role of Regulations

• Regulations Implement statutes

• Code of Federal Regulations – the CFR

Securities and Exchange Commission

Created by the 1934 Securities & Exchange Act:

“There is hereby established a Securities and Exchange Commission (hereinafter referred to as the ‘‘Commission’’) to be composed of five commissioners to be appointed by the President by and with the advice and consent of the Senate. Not more than three of such commissioners shall be members of the same political party . . .” 1934 SEA at § 4(a)

1934 SEA & Securities Fraud

Sec. 10(a). It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— . . .

1934 SEA & Securities Fraud cont.

Sec. 10(b). To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

SEC Regulation Implementing 1934 SEA

Antifraud Provision of Sec. 10“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud,(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”

17 CFR § 240.10(b)-5 (aka Rule 10b-5)

Administrative Agency

Rulemaking Process

Administrative Procedure Act“Public Notice & Comment Rulemaking”

Informal Rulemaking Process Overview

• Phase I: Need for regulation

Rulemaking Process cont.

• Phase II: Preparation of proposed regulation • Statutory requirements

o APAo Paperwork Reduction Acto Unfunded Mandates Reform Acto Congressional Review Act

Rulemaking Process cont.

• Phase III: Publication of proposed regulation

o Federal Register

Rulemaking Process cont.

• Phase IV: Public comment

o “Notice and comment rulemaking”

Rulemaking Process cont.

• Phase V: Preparation of final regulation

Rulemaking Process cont.

• Phase VI: OMB Reviewo E.O. 12,866o E.O. 13,365

Rulemaking Process cont.

• Phase VII: Publication of final ruleo Federal Registero Code of Federal Regulations

Rulemaking Process cont.

• Phase VIII: Legal challenges

Typos and all: Actual Public Comment in FCC

Open Internet (Net Neutrality) Rulemaking60001026753.txt FUCK YOU COMCAST, VERIZON, AND TIME WARNER CABLE. YOU LEAVE OUR INTERNET ALONE. ALL YOU ARE TRYING TO DO IS RAPE IT AND MAKE MORE MONEY ON TOP OF THE UNGODLY AMOUNTS YOU MAKE ALREADY, ALL WHILE PROVIDING SHIT-TIER SERVICE TO PEOPLE. YOU ALREADY HAVE MONOPOLIES AND NOW YOU WANT TO DO THIS!?!?! Do not let these greedy pigs take away net neutrality. It hurts the American economy and will only serve to help the bastards that already have millions. When other corporations say its a bad idea, you know you are dealing with the some heinously greedy motherfuckers.

Sincerely, A Trouble American.

Case Law aka the Common Law

The body of law that develops and evolves from judicial decisions (cases), rather than statutes. Often referred to as “judge made law.”

Why do we need common law? It is impossible to

anticipate every way that a statute might possibly

be applied

Stare Decisis • Fundamental legal doctrine requiring that when

a court has laid down a principle of law that applies to a certain set of facts, courts will adhere to that principle, and apply it to all future cases with similar facts. In Latin, Stare Decisis means “to stand by things decided.”

• Policy reason behind Stare Decisis?

Predictability

Precedent• So, if stare decisis is the principle under

which courts make current decisions consistent with previously decided decisions.

• The previously decided decisions are called “precedent.”

But all precedent is not created equally

• Binding/mandatory precedent – U.S. Supreme Court

• Persuasive precedent – NY Court of Appeals & California Supreme Court or 2d Circuit & 5th Circuit

Role of Courts in the Statutory & Rulemaking Processes

Judicial Review

Structure of Courts in the U.S.

Supreme Court (“highest appellate court”): Panel of justices (no jury); correct errors made in appellate court; harmonize conflicting laws. Lawyers & Justices (9 and not “judges”) only

Court of Appeals (“intermediate appellate court”): Panel of judges (no jury); reviews errors made in trial court. Does NOT “re-hear” trial – no live witnesses, uses only “paper” (documents or “record”) from trial court. Lawyers & Judges (“3”) only

Trial Court (“trial level”): Judge & jury: hears witnesses testimony; admits evidence; determines guilt (criminal trial) or liability (civil trial). “Lots of people” / “Exciting”

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Courts - Key Concept:

JURISDICTION

The Power Of The Court To Decide The Issue(s)

Part Geographic Part Defined By Law/Statutes

State Courts

Are Courts of GENERAL JURISDICTION

Meaning that state courts generally can hear and decide almost any type of case

Federal Courts

Are Courts Of Limited Jurisdiction

Meaning that they can only hear casesas specified by Congress. The two major types are:(1) Federal question(2) Diversity – citizens of different states

Supreme Courts: The Final Word On

Questions of Law

State Supreme Courts

The Last Word on• State Constitution• State Statutes and

Regulations• State Common Law

(cases)

United States Supreme Court

The Last Word On• United States

Constitution• Federal Statutes • Federal Regulations

(judicial review)• Federal Common Law

(cases)

Small but important… Nearly all judicial opinions

(“cases”) you read in law school are written by appellate courts or supreme courts (federal or

state).Not trial courts…

Examples Of State Court Systems

Vermont

Trial Courts

Vermont Supreme Court

Texas

Trial Courts

Civil and Criminal Courts of Appeals

Texas Supreme Court

Source of various State Court Systems

“The judicial power of the State shall be vested in a unified judicial system which shall be composed of a Supreme Court, a Superior Court, and such other subordinate courts as the General Assembly may from time to time ordain and establish.”

Chapter 2, Article 4 of the Vermont Constitution

The Federal Court System

District Courts (typically organized by geographic regions within a state)

Courts of Appeal (11 “circuits” organized by groups of states)

United States Supreme Court

Source of ourFederal Court System “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish . . .”

U.S. Const. Article III

“I’m taking this to the Supreme Court!”Oh really?

Each year the US Supreme Court receives over 7,000 requests to hear cases (called petitions for certiorari). It hears and decides about 80

(about 1%).

N.Y. Federal District Courts by Geography

U.S. Circuit Courts of Appeals

Relationship Between Federal & State Courts

US Supreme Court

US Circuit Courts of Appeals

US Federal District Courts

Highest State Court

State Appeals Court

State Trial Courts

1% Only!

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Federalism Federal States

What is Federalism?

Federalism = SEPARATE GOVERNMENTS with

SHARED POWER

The PlayersBranch Name in Federal

Government SystemName in State

Government

LegislativeCongress

(House & Senate)

“General Assembly”“State Assembly”

“House of Delegates”

Executive President Governor

Judicial

Supreme CourtCircuit Court of

AppealsDistrict Court

Supreme Court (usually)

Court of AppealsTrial Court

What if There is a Conflict between

State & Federal Law?

U.S. Constitution Article VI cl.2: “This Constitution and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

(The conflicting law would be preempted under the “Supremacy Clause”)

Role of Lawyers in U.S. Legal System

• Advocate• Referee• Coach• Agent•One of the players

Judicial Clerkships• 1-2 year opportunity to work closely with a state

court or federal court judge• Particularly valuable experience for litigation

practice• Competitive process – grades, class rank and

writing• Process starts early “3L” year

The EndQuestions?