UNIT 1

Introduction to Law
and the Legal System

Jill Braaten/McGraw-Hill Education

 CHAPTERS IN BRIEF
CHAPTER 1
What Is Law?
Chapter 1 provides the definition of law and discusses the
kinds of laws that exist. The chapter also examines how law is
related to values, human rights, and responsibilities within the
framework of the U.S. Constitution.

T he first unit of this text sets

the stage for your study of law
CHAPTER 2
Lawmaking
and legal issues. Chapters in
Chapter 2 illustrates how laws are made by U.S. legislatures
this unit answer important and regulatory agencies and by appellate courts that establish
questions regarding basic precedents.
information such as:
• What is law? CHAPTER 3
• How are laws made? Advocacy
• What roles can you play in Chapter 3 explores the roles of citizens in influencing the
formation of laws. It also d
­ iscusses advocacy and will teach
influencing lawmakers? you how to develop and implement plans for taking action to
• How is our legal system solve problems your community, state, and country.
organized?
• How can you find and get CHAPTER 4
help from a lawyer? Settling Disputes
Knowing the answers to these Chapter 4 focuses on settling disputes outside of court through
negotiation, mediation, and arbitration. You will learn how to
questions will help you develop make smart decisions when you encounter conflict in your life.
skills you will need for the rest

CHAPTER 5
of your life.

The Court System

Chapter 5 introduces international courts and the parallel
systems of federal and state courts in the United States. You
will learn about trial courts, appeals courts, military courts, and
tribal courts, as well as the power of the Supreme Court within
the U.S. s­ ystem of justice.

CHAPTER 6
Lawyers
The phrase “equal justice under Chapter 6 helps you to determine when a lawyer is needed
law” refers to the goal of the U.S. and how to find and work with lawyers. The chapter also
court system to treat all persons discusses the career path to becoming a lawyer.
fairly.
1
 CHAPTER 1
What Is Law?

Congress passes laws for

everyone in the United States
to live by.

The question “What is law?” has troubled people for many years. Many
definitions of law exist. For our purposes, however, law can be defined as
the rules and regulations made and enforced by government that regulate
the conduct of people within a society.
As a child, you learned about rules first at home and later at school. At
home, your parents or guardians made and enforced rules concerning
issues such as chores and bedtimes. Later teachers and principals
established rules about behavior in school. Rules made and enforced by
the government are called laws. The government makes laws that affect
almost every aspect of daily life.
One thing is certain: Every society that has ever existed has recognized
the need for laws. These laws may have been unwritten, but even
preindustrial societies had rules to regulate people’s conduct. Without
laws, there would be confusion and disorder. This point does not mean that
all laws are fair or even good, but imagine how people might take advantage
of one another without a set of rules.
A democratic system of government cannot function effectively unless
its laws are known and respected by the people the laws are intended to
govern. In other words, society must be based on the “rule of law.” The rule
of law requires that the rules by which we are governed be known in
advance and created through democratic processes. Rules should not be
made up after the fact by arbitrary actions or decrees. All members of
society—average citizens and government officials such as senators,
Alan Crosthwaite/Alamy

judges, and even the president—are required to support the legal system
and obey its laws. Where rule of law exists, no one is above the law.

2
 PROBLEM 1.1
List 10 of your daily activities (for example, waking up, eating, and
going to school). Next to each item, list any laws that affect that
activity. What is the purpose of each law that you identified? Would
you change any of these laws? Why or why not?

Law and Values

Laws generally reflect and promote a society’s values. Our legal system
is influenced by our society’s traditional ideas of right and wrong. For
example, laws against murder reflect the moral belief that killing another
person is wrong. However, not everything that is immoral is also illegal. For
example, lying to a friend may be immoral but is usually not illegal.
We expect our legal system to achieve many goals. These include:
• protecting basic human rights,
• promoting fairness,
• helping resolve conflicts,
• promoting order and stability,
• promoting desirable social and economic behavior,
• representing the will of the majority, and
• protecting the rights of minorities.
Many of society’s most difficult problems involve conflicts among these
goals. For example, some laws give preference to minorities. Critics of these
laws argue that they promote reverse discrimination and racial conflict.
Proponents of such laws, however, argue that they make up for past discrim-
ination and promote fairness by leveling an uneven playing field in society
today.
Achieving the goals listed above while trying to minimize conflict is a
difficult task for our legal system. Laws must balance rights with
responsibilities, the will of the majority with the rights of the minor­ity, and
the need for order with the need for basic human rights. Reasonable people
sometimes disagree over how the law can protect the rights of some
without violating the rights of others. However, everyone must remember
that laws are intended to protect people and prevent and resolve conflicts
in everyday life.
This sign reflects society’s
values about right and wrong. What
values are placed in conflict by laws
protecting the environment?
McGraw-Hill Education

What Is Law? 3
THE CASE OF...
The Shipwrecked Sailors
Three sailors on an oceangoing freighter were
cast adrift in a life raft after their ship sank during
a storm in the Atlantic Ocean. The ship went down
so suddenly that there was no time to send out an
SOS. As far as the three sailors knew, they were
the only survivors. They had no food or water in
the raft. And they had no fishing gear or other
equipment that might be used to get food from
the ocean.
After recovering from the shock of the
shipwreck, the three sailors began to discuss their
situation. Dudley, the ship’s navigator, figured that
they were at least one thousand miles from land
and that the storm had blown them far from where
and Brooks lost. At this point, Brooks objected and
any ships would normally pass. Stephens, the
refused to consent. However, Dudley and
ship’s doctor, indicated that without food they
Stephens decided that Brooks would die soon
could not live longer than 30 days. The only
anyway, so they might as well get it over with.
nourishment they could expect was from any rain
After thus agreeing, they killed and ate Brooks.
that might fall from time to time. He noted,
Five days later, Dudley and Stephens were
however, that if one of the three died before the
rescued by a passing ship and brought to port.
others, the other two could live a while longer by
They explained to authorities what had happened
eating the body of the third.
to Brooks. After recovering from their ordeal, the
On the twenty-fifth day, the third sailor, Brooks,
two were placed on trial for murder.
who by this time was extremely weak, suggested
The country in which they were tried had the
that they all draw lots and that the loser be killed
following law: Any person who deliberately takes
and eaten by the other two. Both Dudley and
the life of another is guilty of murder.
Stephens agreed. The next day, lots were drawn

PROBLEM 1.2
a. S hould Dudley and Stephens be tried for d. W hat purpose would be served by
murder? Explain. convicting Dudley and Stephens?
b. As an attorney for Dudley and Stephens, e. What is the relationship between law
what arguments would you make on their and morality in this case? Was it morally
behalf? As an attorney for the government, wrong for Dudley and Stephens to kill
what arguments would you make on the Brooks? Explain your answer.
government’s behalf? f. Can an act be legal but immoral? Can an
c. If Dudley and Stephens are convicted, act be morally right but unlawful? Explain.
what should their punishment be?
Glow Images

4 Introduction to Law and the Legal System

 Laws can be based on moral, economic, political, or
social values. As values change, so can laws. Moral values
deal with fundamental questions of right and wrong. For
example, laws against killing promote society’s primary
moral value—the protection of life. However, even this
shared moral value—protection of life—is not absolute or
universal because in limited circumstances such as self-de-
fense or war, the law allows intentional killing.
Economic values deal with the accumulation, preserva-
tion, use, and distribution of wealth. Many laws promote
economic values by encouraging certain economic deci-
sions and discouraging o ­ thers. For example, the law
encourages home ownership by giving tax benefits to
people who borrow money from a lender to pay for a
home. Laws against shoplifting protect property and dis-
courage stealing by providing a criminal penalty.
Political values reflect the relationship between gov-
ernment and individuals. Laws making it easier to vote
promote citizen participation in the political process, a
basic American political value.
Social values concern issues that are important to soci-
ety. For example, it is an American social value that all stu-
dents are provided with free public education at least
through high school. Consequently, all states have laws
providing for such education. Like other values, social values can change. Female participation in
In the past, for example, society believed that school sports were not as traditionally male activities is on the
important for girls as for boys. This value has changed. Laws now reflect the rise. How does this photo reflect
society’s changing laws and values?
belief that females should be provided with sports opportunities similar to
those offered to males.
Many laws combine moral, economic, political, and social values. For
example, laws against theft deal with the moral issue of stealing, the
economic issue of protection of property, the political issue of how
government punishes those who violate criminal statutes, and the social

Constitution
issue of respecting the property of others. THE
Many Americans tend to think that laws can be passed to solve all of
their problems. In 1919, the U.S. Constitution was amended to prohibit
the manufacture and sale of alcoholic beverages in this country. The After one year from
Eighteenth Amendment was passed in response to a significant national ratification of this article the
©Isadora Getty Buyou/Image Source, all rights reserved.

problem. However, prohibition of alcohol was extremely difficult to manufacture, sale, or

enforce, and 14 years later it was repealed by another c­onstitutional transportation of
amendment. (The text of the entire U.S. Constitution is available from the intoxicating liquors within,
National Archives website.) the importation thereof into,
Some laws designed to protect certain values may interfere with other or the exportation thereof
important values. After the terrorist attacks on September 11, 2001, from the United States and
Congress moved quickly to pass the USA Patriot Act, a federal law designed all territory subject to the
to protect against further attacks. Some people criticized this law, which jurisdiction thereof for
makes certain searches and electronic eavesdropping easier, as an invasion beverage purposes is hereby
prohibited.
of the civil liberties Americans cherish. Others believe that, as a country,
we may have to sacrifice some liberty for additional security during —Eighteenth Amendment
dangerous times.

What Is Law? 5
 Today, legislators try to deal with the country’s devastating drug and
gang problems by passing a wide variety of laws. People disagree on what
role the law can play in solving these problems. Experience shows that
there is a limit to what laws can reasonably be expected to do.

PROBLEM 1.3
a. Identify a problem for which we need a law. Explain your answer.
b. Identify an existing law that is not necessary. Explain your answer.

Human Rights
human rights basic privileges Human rights are the rights all people have simply because they are
a person as a human being human beings. To advocate human rights is to demand that the dignity of
all people be respected. Both government and private i­ndividuals can vio-
late human rights. Human rights apply in people’s homes, schools, and
workplaces. In fact they apply everywhere. Governments have the duty to
respect, protect, and fulfill all individuals' human rights.
The Universal Declaration of Human Rights (UDHR) is a statement of
basic human rights and standards for government that has been agreed to
by almost every country in the world. (The text of the entire UDHR is avail-
able from the United Nations website.) First written and adopted by the
United Nations (UN) in 1948 under the leadership of Eleanor Roosevelt, it
proclaims that all people have the right to liberty, education, political and
religious freedom, and economic well-being. The Declaration also bans
torture and says that all people have the right to participate in their gov-
Eleanor Roosevelt believed that ernment process. Today these rights are generally promoted, recognized,
her work on the Universal Declaration and observed by countries that belong to the UN.
of Human Rights was her greatest The UDHR is not a binding treaty. However, the UN has established a
accomplishment. How can human
system of international treaties and other legal mechanisms to enforce
rights affect the writing of laws?
human rights. These include the following major treaties:
• The International Covenant on Civil and Political
Rights protects the freedoms of speech, religion, and
press and the right to participate in government.

Library of Congress, Prints & Photographs Division [LC-USZ62-25812]

• The International Covenant on Economic, Social
and Cultural Rights provides for the right to adequate
education, food, housing, health care, protection of
property, and employment in safe conditions at an
adequate salary.
• The Convention on the Rights of the Child spells out
basic human rights to which children everywhere
are entitled, including the right to education and to
be free from exploitation.
Some believe the right to a clean environment should be
added to the Covenants, while others call for a right to
economic development for poor countries. The United
States has signed and ratified the Covenant on Civil and

6
Political Rights and has signed but not ratified both the Covenant on
Economic, Social and Cultural Rights and the Convention on the Rights
of the Child. A treaty must be ratified in order to be binding.
Even when the United States signs a human rights agreement, it often
restricts its enforcement within the country. This action is done by
announcing that the United States is taking reservations, which is a legal reservation a legal way of
way of making a provision less enforceable than it might otherwise be. The making a provision less
government gives reasons for these reservations, including the fact that enforceable than it might be
the treaty would take away the power of individual states to make law otherwise
under our system of federalism, as well as the belief that other countries
should not impose their views on the states. Those who advocate ratification
argue that states could still decide how to implement treaties.

PROBLEM 1.4
You have been selected to join a group of space pioneers who will
establish a colony on a distant planet. In order to create the best
possible society, you and your group decide to make a list of the
human rights that all space colonists should have.
a. List the three most important human rights that you believe should
be guaranteed to all colonists.
b. Compare your list with those of other group members. Explain
reasons for your selections.
c. Why do you think some of the rights you listed are more important
than others?
d. Do any of the rights you listed conflict with one another? If so, which
ones? Why?
e. Compare your list of rights with those listed in the Universal
Declaration of Human Rights. Which ones did you include? Which
ones did you not include?
f. Are all the human rights you listed also legal rights? When does a
human right become a legal right?

Human rights are standards that all countries can use when writing laws.
Sometimes human rights become law in a country when the government
signs and ratifies an international treaty guaranteeing such rights. Human
rights also can become law if they are included in a constitution or if the
legislature of a country passes laws protecting or guaranteeing these
rights. Even though they may not refer to them as “human rights,” there are
many provisions that protect human rights in the U.S. Constitution and Bill
of Rights and in federal, state, and local laws.
Many of the human rights documents—including the UDHR—mention
cultural rights, and it is widely accepted that all people have a right to their own
culture. But what does this right to culture mean when culture comes into
conflict with other universally accepted human rights? For example, the practice
of female infanticide, or the killing of female babies, might be accepted in one
culture, but the world community condemns it as a violation of a human right,
the right to life. So cultural rights, like many other rights, are not absolute.

What Is Law? 7
 Rule of Law
The second president of the United States, John Adams, Jr., said that
ours is a “government of laws and not of men.” In this phrase he captured
the core meaning of the term rule of law. Where the rule of law is present,
laws are clear, well understood, and fairly enforced. And no one is above
the law. The rule of law serves as a safeguard against arbitrary actions by
government and also helps protect basic human rights.
A global organization, the World Justice Project, measures adherence to
the rule of law in more than 100 countries. They do this through surveys of
individual households and expert questionnaires in each country. Through
these surveys they have created an annual rule of law index with scores for
each country. The index is based on the following eight factors:
• Constraints on government: This factor focuses on limits on the
power of government and includes checks on executive power by
legislatures and courts, as well as checks on governmental power
provided by a free media and active civil society.
• Absence of corruption: Government officials, including the police,
do not use their public office for private gain (for example, by accept-
ing bribes).
• Open government: Laws are published, and people have access to
this information. They also have mechanisms for complaining about
government action.
• Fundamental rights: Basic rights to expression, religion, and privacy
are protected; government uses fair procedures and people receive
equal treatment (no discrimination).
• Order and security: Crime is controlled, and people do not resort to
violence to resolve problems.
• Regulatory enforcement: Government rules and regulations are fair
and are enforced without undue influence (no corruption).
• Civil justice: The civil justice system is available to people without
undue expense or delay, and operates fairly and without corruption.
• Criminal justice: The criminal justice system Is fair, free of corruption,
operates without undue delay, and deters crime.
Avoiding corruption is obviously one critical factor in assuring strong
rule of law. Typically, the Scandinavian countries have the strongest scores
in the rule of law index. Countries with massive corruption and where the
rulers do not follow the rules have weak rule of law.

8 Introduction to Law and the Legal System

 PROBLEM 1.5
Visit the World Justice Project at www.worldjusticeproject.org and
look at the most recent rule of law index report to answer the following
questions.
a. Identify two countries with stronger rule of law index scores than
the United States.
b. Identify two countries with weaker rule of law index scores than the
United States.
c. What steps could be taken in the United States to strengthen rule
of law?

Balancing Rights With Responsibilities

The emphasis on rights in the United States has led some people to
criticize the country for being too concerned with rights, while neglecting
responsibilities. Some say that “with every right there comes a responsibil-
ity” and urge people to act more responsibly toward one another, their
families, and their communities.
While individual rights are important, they must be matched by social
responsibilities, these critics say. For example, if people wish to be tried by
juries of their peers, they must be willing to serve on such juries. If they want
to be governed by elected officials who respond to their values and needs,
they not only must vote, but also get involved in other ways: attend election
forums, work for candidates, and run for positions on school boards, city
councils, and community associations. Many laws also require people to act
responsibly. For example, parents must provide their children with adequate
food, shelter, and clothing; drivers must obey traffic laws; and all workers
must pay taxes.
Critics of the emphasis on rights in the United States point out that “just
because you have a legal right to do (or not to do) something does not mean
it is the right thing to do.” For example, the First Amendment protects free-
dom of speech and sometimes gives people the right to say hateful and
abusive things. However, it does not make such speech morally right.
National Archives and Records Administration (NWDNS-306-SSM-4A-35-6)

Others emphasize the pride that Americans take because rights have
been extended to women, people of color, and persons with disabilities, all
of whom had been previously excluded from full participation in society.
Striking the correct balance between rights and responsibilities can be
difficult.

Leaders helped minority groups

fight for civil rights. How have laws
changed to include women, minorities,
and persons with disabilities?

What Is Law? 9
THE CASE OF...
The Apathetic Bystanders PROBLEM 1.6
Catherine “Kitty” Genovese was attacked and
a. Why do you think the bystanders took no
stabbed to death in 1964 in a highly populated
action to help Kitty?
area of Queens, New York. During the half-hour
ordeal, 38 people heard Kitty’s screams for help b. Did the bystanders commit a crime by not
and watched from their windows. Twice the killer acting? Give your reasons.
was scared off by the sound of voices and the c. Did the bystanders do the right thing?
realization that he was being watched. However, d. Should the law require that citizens help out
both times, when it became obvious that nobody in cases such as this one?
was going to call the police, the killer returned to
e. Draft a bystander responsibility law.
finish off his victim. Rather than give any aid to
Kitty, such as calling the police or an ambulance,
all 38 bystanders chose to pull their shades, draw
their blinds, and ignore Kitty’s urgent pleas for help
as her life was taken by the deranged attacker.

criminal law the branch of law

Kinds of Laws
dealing with crimes and their Laws fall into two major groups: criminal and civil. Criminal laws
punishment regulate public conduct and set out duties owed to society. A criminal case
felony a serious criminal offense
can be brought only by the government against a person charged with
punishable by a prison sentence of committing a crime. Criminal laws have penalties, and convicted offenders
more than one year are imprisoned, fined, placed under supervision, or punished in some other
way. In the U.S. legal system, criminal offenses are divided into felonies
misdemeanor a criminal offense,
less serious than a felony,
and misdemeanors. Felonies, such as murder or robbery, are more serious
punishable by a prison sentence of crimes. The penalty for a felony is a term of more than one year in prison.
one year or less For a misdemeanor, the penalty is a prison term of one year or less. Less
serious crimes, such as simple assault or minor theft, are called
civil law all law that does not
involve criminal matters, such as tort
misdemeanors.
and contract law. Civil law usually Civil laws regulate relations between individuals or groups of individuals.
deals with private rights of A civil action is a lawsuit that can be brought by a person who feels
individuals, groups, or businesses. wronged or injured by another person. Courts may award the injured
civil action a noncriminal lawsuit,
person money for the loss, or they may order the person who committed
brought to enforce a right or redress the wrong to make amends in some other way. An example of a civil action
a wrong is a lawsuit for recovery of damages suffered in an automobile accident.
Civil laws regulate many everyday situations, such as marriage, divorce,
defendant the person against
whom a claim is made. In a civil suit,
contracts, real estate, insurance, consumer protection, and negligence.
the defendant is the person being Sometimes behavior can violate both civil and criminal laws and can
sued; in a criminal case, the result in two court cases. A criminal case is brought by the government
defendant is the person charged against a defendant, the person accused of committing the crime. A civil
with committing a crime. case is brought by the plaintiff—the person or company harmed—against
plaintiff in a civil case, the injured the defendant.
party who brings the legal action
against the alleged wrongdoer

10 Introduction to Law and the Legal System

 In a famous series of cases, former star football player O.J. Simpson was
prosecuted in connection with the deaths of his former wife, Nicole Brown
Simpson, and her friend, Ron Goldman. The Los Angeles district attorney
was the prosecutor in this criminal case. In order to win a conviction, the prosecutor the state or federal
district attorney had to prove that O.J. Simpson was guilty beyond a government's attorney in a criminal
reasonable doubt. This means that if the jury (or the judge in a case tried care
without a jury) has any reasonable doubts about the defendant’s guilt, beyond a reasonable doubt the
then it must vote not to convict. The jury verdict in Simpson’s criminal case level of proof required to convict a
was not guilty. person of a crime. It does not mean
Several months later, the parents of Ron Goldman brought a civil suit "convinced 100 percent," but does
mean there are no reasonable
against O.J. Simpson to recover damages resulting from the wrongful
doubts as to guilt.
death of their son. In a civil case, the plaintiff wins by convincing the jury
(or the judge in a case tried without a jury) by a preponderance of the preponderance of the evidence
evidence. The jury (or judge) needs only to decide if it is more likely than usually the standard of proof used in
a civil suit; the burden of proof that a
not that the plaintiff’s complaint is true. This is a lower requirement for
party must meet in order to win the
proof than the beyond-a-reasonable-doubt standard used in criminal lawsuit. To win, a party must provide
cases. The reason for the different standards of proof is that a defendant evidence that is more convincing
loses money in a civil case but can suffer lengthy imprisonment or even than the other side's evidence.
the death penalty as a result of a criminal conviction. The Goldmans won
their civil case against O.J. Simpson. Because the public tends not to
understand the difference between civil and criminal cases, there was
much confusion about how a person could be found not guilty in a criminal
case and then responsible in a civil suit for damages for the same act.

PROBLEM 1.7
Matt and Kenji take Kenji’s brother’s car without telling him and
drive to a local shopping center. Ignoring the sign “Parking for
Handicapped Persons Only,” they leave the car and enter an electronics
shop.
After looking around, they buy a new tablet. Then they buy some
sandwiches from a street vendor and walk to a nearby park. While
eating, they discover that the tablet does not work. In their hurry to
return it, they leave their trash on the park bench.
When Matt and Kenji get back to the shopping center, they notice a
large dent in one side of their car. The dent appears to be the result of
a driver’s carelessness in backing out of the next space. They also
notice that the car has been broken into and that a smartphone has
been removed.
They call the police to report the accident and theft. When the
police arrive, they seize a small, clear bag containing illegal drugs from
behind the car’s backseat. Matt and Kenji are arrested.
a. List all the things you think Matt and Kenji did wrong.
b. What laws are involved in this story?
c. Which of these are criminal laws? Which are civil laws?

What Is Law? 11
 Our Constitutional Framework
The U.S. Constitution is the highest law of the land. Drafted more than
two hundred years ago, this remarkable document is the longest-lasting
written constitution in the world. It sets forth the basic framework of our
government. It also lists the government’s powers, the limits on those
powers, and the people’s freedoms that cannot be taken away by the
government.
limited government a basic The principle of limited government is a fundamental notion in our
principle of our constitutional Constitution. Before the U.S. Constitution was written and ratified, the
system. It limits government to individual states were reluctant to give up power to the national
powers provided to it by the people.
­government. After all, a revolution had just been fought against the
government of the king of England to preserve individual liberty and the
freedom to govern independently. As a result, the Constitu­tion created a
national government of limited powers, with authority to pass laws only in
the areas listed in Article I of the Constitution. Those who criticize the reach
of the federal government’s power today often cite these historic reasons
for limiting its power.
Perhaps nothing is more important in the Constitution than the division
of power among the three branches of the federal government: the
executive, the legislative, and the judicial. This division is known as the
separation of powers the division separation of powers. The legislative branch, or Congress, writes and
of power among the branches of passes laws called statutes. The executive branch, which includes the
government (executive, legislative, president and federal agencies, is primarily responsible for implementing
and judicial)
and enforcing the law. To do so, the executive branch makes rules and
issues executive orders that have the force of law.
statutes written laws enacted by
legislatures The judicial branch, or the courts, resolves disputes and interprets laws.
These rulings may interpret a provision of the Constitution, a statute, or a
rule issued by an executive agency.
The three branches of the federal government are independent, but
each has the power to restrain the other branches through a system of

This image depicts the members of

the Constitutional Convention formally
endorsing their new plan of
government. What is the purpose of
the U.S. Constitution?

Architect of the Capitol

12 Introduction to Law and the Legal System

checks and balances. The system was designed to prevent one branch checks and balances the power of
from becoming too powerful and abusing its power. For example, Congress each of the three branches of
may investigate actions by the president or other executive officials, and government (legislative, judicial,
executive) to limit the other
members of Congress or the executive branch may be prosecuted in court
branches' power, so as to prevent an
for violating that law. Another check is the president’s power to veto, or abuse
refuse to approve, laws passed by Congress. Yet another check is congres-
veto prohibit; in government, the
sional power to impeach the president or federal judges.
veto is the power of the chief
One of the most visible and important checks of one branch on another
executive to prevent enactment of a
is the courts’ power of judicial review. Judicial review enables a court to bill (i.e., to prevent the bill from
declare unenforceable any law passed by Congress or a state legislature becoming a law)
that conflicts with the country’s highest law, the U.S. Constitution. For
judicial review the process by
example, Congress might pass a law prohibiting media criticism of elected
which courts decide whether the
officials. If challenged in court, this law would be declared invalid and laws passed by Congress or state
unconstitutional because it violates the freedom of speech and press legislatures are constitutional
guaranteed in the First Amendment to the Constitution. In general, the
unconstitutional conflicting with
courts can declare a law unconstitutional either because (1) the
some provision of the Constitution
government has passed a law that the Constitution does not give it the
power to pass or (2) the government has passed a law that violates federalism the division of powers
somebody’s rights. Judicial review also gives the courts the power to between the states and the federal
government
declare an action of the executive or legislative branch to be unconstitutional.
For example, the courts can strike down law enforcement actions that Bill of Rights the first ten
violate a constitutional right. amendments to the Constitution,
Just as the Constitution provides checks on the power of each branch, which guarantee basic individual
rights to all persons in the United
it also reflects the view that the powers of the federal government as a
States
whole should be limited. The federal government can only make laws
about certain topics and these topics are listed in the Constitution. States,
on the other hand, can legislate on a much wider range of topics. In some

Constitution
areas, the federal and state governments share lawmaking power. This THE
division of power between the states and the federal government is
known as federalism. This is why most civil and criminal laws are passed
by state legislatures or local governments, and many laws differ from state Congress shall make no law
to state. respecting an establishment
The principle of limited government is also manifested in the Bill of of religion, or prohibiting the
Rights, the first 10 amendments to the Constitution. The Bill of Rights free exercise thereof; or
defines and guarantees the fundamental rights and liberties of all abridging the freedom of
speech, or of the press; or
Americans, including the freedoms of religion, speech, and press; the
the right of the people
freedom from unreasonable search and seizure; and other individual rights.
peaceably to assemble, and
The Supreme Court has ruled that most provisions of the Bill of Rights limit
to petition the Government
the power of state and local governments as well as the federal government. for redress of grievances.
Every state has a constitution, and most state constitutions include the
major principles of the U.S. Constitution. All provide for different branches —First Amendment
of government, separation of powers, and a system of checks and bal-
ances. Some state constitutions provide greater protection of rights than
the U.S. Constitution. The Constitution sets a floor, but not a ceiling, on
individual rights. For example, some state constitutions guarantee people
greater rights than they have under the U.S. Constitution.
The U.S. Constitution and most state constitutions are difficult to change.
The reason is that they were drafted with the belief that they should not be

What Is Law? 13
 Federal troops enforced the U.S.
Constitution and forcibly integrated
this school in Washington D.C. What is
the role of the federal government in
protecting individual rights?

changed without careful thought, discussion, and debate. The idea was to
make these documents as permanent as possible. However, allowances
were made to accommodate necessary changes. The U.S. Constitution may
be changed in two ways. An amendment must be proposed either by a
two-thirds vote of each house of Congress or at a constitutional convention
called by two-thirds of the states. In either case, it must then be ratified, or
approved, by legislatures or conventions in three-fourths of the states.

Constitution
THE People try to change the Constitution for many reasons. One of the most
common reasons for change has been to extend rights that were not
originally written into the Constitution. Although ratification is difficult, 27
No law, varying the amendments have been added to the Constitution. These amendments
compensation for the often reflect the changing viewpoints of citizens and their elected
services of Senators and representatives. For example, when the original Constitution was ratified in
Representatives, shall take
1789, most states restricted voting to white males who owned property.
effect, until an election of
Since then, various amendments have extended voting rights to people of
Representatives shall have

Library of Congress Prints & Photographs Division [LC-DIG-ppmsca-03095]

color, women, and persons aged 18 to 20.
intervened.
Amendments for a range of issues have been discussed and proposed
—Twenty-Seventh over the years. Some think there should be a constitutional amendment
Amendment to provide full congressional representation to the citizens of the District
of Columbia. Another proposed amendment would require the federal
government to adopt a balanced budget. Other amendments have been
proposed to punish flag burning, protect victims of crime, and ban
abortions. The Equal Rights Amendment, passed by Congress in 1972,
prohibited discrimination on the basis of gender. However, it failed to be
ratified by the required 38 states, so it did not become a part of the U.S.
Constitution. In 1992, the Twenty-Seventh Amendment became part of
the Constitution. This amendment, first proposed by James Madison in
1789, bans midterm congressional pay raises.

14 Introduction to Law and the Legal System

PROBLEM 1.8
For each of the following situations determine for whether it involves
the principle of separation of powers, checks and balances, judicial
review, federalism, or some combination of these principles. Specify
the principle or principles involved and explain your answer.
a. A state law requires that a prayer be said each day in public schools.
A federal court rules that the law violates a First Amendment clause
that prohibits the government from establishing a religion.
b. The U.S. Congress passes a law requiring that Supreme Court
sessions be televised.
c. Because a prison is very old and overcrowded, a state court orders
the state legislature to spend $100 million on a new prison.
d. A state government passes a law legalizing recreational and medic-
inal marijuana use despite a federal statute that lists it as an illegal
drug. The federal Drug Enforcement Agency seizes drugs from a
citizen in this state and prosecutes the person in federal court.
e. The U.S. Supreme Court rules that flag burning is a protected form
of free speech under the First Amendment. In response to their
constituents’ wishes, senators and representatives from several
states propose an amendment to the Constitution making it illegal
to burn the flag.
f. A federal court serves the president of the United States with a
subpoena seeking evidence of a crime. The president refuses to
turn over the evidence claiming executive privilege. The U.S.
Supreme Court rules that the president's executive privilege power
is limited and that he must turn over the evidence.

What Is Law? 15
 CHAPTER 2
Lawmaking

The U.S. Capitol is home to

the legislative branch of the
federal government.

The laws that U.S. citizens are expected to obey come from many sources,
including federal, state, and local governments. Constitutions set forth
laws and establish the structure of government. Legislatures, of course,
make laws. In some situations, voters can act directly as lawmakers.
Administrative agencies also make many laws. Finally, laws are sometimes
made by courts when they decide appeals.

Legislatures
The U.S. Constitution divides the power to make laws between the
federal government and the state governments. At both the f­ederal and
the state levels, legislatures are the primary lawmaking bodies. The U.S.
Congress—the federal legislature—is made up of two houses. The Senate is
composed of 100 members, with two from each state, and the House of
Representatives has 435 members, with each state represented according
to the size of its population. The U.S. Constitution gives Congress the
power to pass certain laws that are binding on the people in every state.
States have the power to pass laws that apply only within their
boundaries.
The lawmaking authority of Congress is exercised through the passage
Tetra Images/Getty Images

statutes written laws enacted of laws known as federal statutes. When Congress passes a federal stat-
by legislatures ute, it affects people in every state. Federal statutes deal with issues of
national impact, such as environmental quality, national defense, home-
land security, labor relations, veterans affairs, public health, civil rights,
economic development, postal services, federal taxes, and social security
and other benefits programs.

16
 The states’ lawmaking powers are vested in their legislatures, which Segregated drinking fountains
pass laws called state statutes. Except for Nebraska, every state has a two- were common in the American South
in the 1960s. Why was the federal
house legislature. Most states’ legislatures meet on an annual basis; in a
government concerned about this
few states, the legislatures meet every two years. States pass laws with
situation?
statewide impact in such areas as education, transportation and traffic,
state taxes, marriage and divorce, most criminal laws, and the powers and
duties of state government officials. Although tribal governments of
Native Americans vary, many place legislative ­authority, and sometimes
executive authority, in a tribal council.
The power of the federal government to pass laws is limited. Congress
cannot legislate unless given the power to do so in the Constitution. The
states, on the other hand, have broader power to legislate. In general, the
states have power to legislate in all those areas over which the national
government was not granted power by the Constitution. For example, a
state could not enter into a treaty with another country or coin money, as
those are among the specific ­powers assigned to the national government.
These powers are set forth in Article I, Section 8, of the Constitution.
In addition to the U.S. Congress and state legislatures, cities, towns,
and counties also have lawmaking bodies such as county or city councils,
boards of aldermen, and local boards of education. Local governments
USDA Photograph Archives

pass laws known as ordinances or regulations. Legislative issues that ordinance a county or city law
concern local governments include land use, parking, schools, and
regulation of local business. Laws passed by local ­governments apply only
to a county, city, or town. Local lawmaking bodies receive the power to
enact ordinances from the state. Many laws important in our daily lives
are passed by local governments.

Lawmaking 17
 Sometimes federal laws conflict with state and local laws. For exam­
ple, in the 1960s, federal laws against racial segregation in restaurants
and hotels came into conflict with laws in some states that required
separate accommodations for African Americans and whites. The courts
ruled the state laws invalid based on Article VI of the Constitution, the
supremacy clause the provision in supremacy clause, which states that “the Constitution and the Laws of
Article VI of the Constitution stating the United States . . . shall be the supreme law of the land.” The Supreme
that in the event of conflict between Court has also ruled that Congress has sometimes passed laws about
state and federal law, the federal topics that are the proper focus of the states. These laws have been found
law must be applied.
to be an unconstitutional intrusion on the rights of states. Finally, there
are a few topics for which both the federal government and the states
have legislative power. For example, while most criminal laws are passed
by state legislatures, Congress has also passed a limited number of federal
criminal laws.

PROBLEM 2.1

Decide whether each of the following is a federal, a state, and/or a

local law. Then give one example, not listed here, of a federal, a state,
and a local law.
Investigating the Law a. No parking on the east side of Main Street between 4:00 p.m. and
Where You Live 6:00 p.m.
Research to learn b. All persons between the ages of 6 and 16 must attend school.
where on the Internet c. Whoever enters a bank for purposes of taking by force or violence
you can find a list and the property or money in custody of such bank shall be fined not
explanation of your more than $50,000 or imprisoned not more than 20 years or both.
state’s statutes.
d. In order to sell any product on public streets, the seller must first
apply for and receive a vendor’s permit.
e. No employer of more than 15 persons may discriminate on the basis
of race, color, religion, sex, or national origin.
f. All persons traveling on interstate airline carriers are subject to
search before entering the airplane departure area.

Legislatures and other lawmaking bodies try to respond to the needs of

bill a proposed law being the citizens they represent by introducing legislation in the form of bills.
considered by a legislature Bills are used to enact new laws or to amend or repeal old laws. Ideas for
bills can come from legislators, the executive branch, individual citizens,
citizens groups, businesses, or lobbyists representing specific interest
groups. A bill passed by the legislature and not vetoed by the executive
branch becomes a law.
legislative intent what the
After a bill becomes a law, the people must obey it. Sometimes, though,
lawmakers who passed a law wanted
the law to mean. If the language of a the language of a law is open to differing interpretations. It is not always
statute is unclear, judges will often easy to know exactly what a law prohibits or allows. Disputes over what
look at the legislative intent to help a law means frequently end up in court. A judge who interprets what the
them interpret the law. legislature means is determining legislative intent.

18 Introduction to Law and the Legal System

 THE CASE OF...
The Unclear Law
The city of Beautifica has established a
lovely park in the city. The city council
wishes to preserve some elements of
nature, undisturbed by city noise, traffic,
pollution, and crowding. The park is a
place where citizens can find grass, trees,
flowers, and quiet. In addition, there are
playgrounds and picnic areas. At one time
a road ran through the park. Now the
road is closed. The city council has
enacted a law requiring that all entrances
to the park have the following sign
posted: NO VEHICLES IN THE PARK.

Park rules should be clear to everyone.

PROBLEM 2.2
The law seems clear, but some disputes have c. T wo police cars are chasing a suspected
arisen over its interpretation. Interpret the law in bank robber. If one police car cuts through
the following cases, keeping in mind what the law the park, it can get in front of the suspect’s
says (the letter of the law) as well as the legislative car and trap it between the patrol cars.
intent. Examine each situation and decide whether d. An ambulance is racing to the hospital with
or not the vehicle described should be allowed in a dying patient. The shortest route is through
the park. Write the reasons for your choices. When the park.
you finish analyzing all of the situations, rewrite the
e. Elena wants to take her baby to the park in
law to make it clearer.
a stroller.
a. Tony lives on one side of the city and works
f. A monument is being erected to the city’s
on the other. He will save ten minutes if he
citizens who died in the Vietnam War. A tank,
drives through the park.
donated by the government, is to be placed
b. To keep the park clean, trash barrels are beside the monument.
located throughout the area. The sanitation
g. Amul uses an electric wheelchair and wants
department wants to drive a truck into the
to visit the park.
park to collect the trash from the barrels.
h. Roshini wants to fly her toy drone in the park.
Michael N. Paras/age fotostock

Lawmaking 19
 Drafting a Bill
No matter where the idea for a bill originates, eventually there must
come a time when the bill is drafted—that is, when actual language is
written. As you can see from The Case of the Unclear Law, even the simplest
language might not be clear enough for people to understand. Legislation
is often drafted and redrafted before being introduced and discussed by a
legislative body. Despite these efforts, laws are sometimes difficult to read
and understand. When misunderstandings occur, one of the basic purposes
of law—letting people know what conduct is expected of them or what
conduct is prohibited—is lost. When drafting laws, it is useful to ask the
following questions to evaluate whether problems are likely to result.
• Is the law written in clear language?
• Is the law understandable?
• When does the law go into effect?
• Does the law contradict any other laws?
• Is the law enforceable? If so, by whom?
• Are the penalties for breaking the law clear and reasonable?
In deciding what a statute means, judges must follow certain rules.
One rule is that courts will not enforce laws, particularly criminal laws,
that are so vague that it is unclear exactly what conduct is prohibited.

TAKING ACTION: Law and Democracy

Drafting a Law a lawful product (cigarettes). They believe that
economic forces, rather than government action,
Simulation will bring the best results. Some restaurants, for
The harmful effects of cigarette smoking, both example, will choose to be smoke-free in order
for smokers and for those nearby, continue to to attract patrons who care about this issue.
make headlines. In your town there is a
discussion about prohibiting smoking in certain
places. Opinion on this issue is divided. Some
PROBLEM 2.3
restaurant employees want to work in healthier, You are a member of the citizens advisory
smoke-free environments. Some restaurant group to your town council. Your group has
owners are concerned that no-smoking rules been asked to draft a new ordinance dealing
will harm their businesses and might result in a with smoking in public places.
loss of jobs. Some citizens believe that smoking a. List the details that should be included.
should be banned in all public places, including
stores, restaurants, workplaces, and even b. Create a draft of the ordinance, using the
outdoor spaces such as parks. guidelines for drafting laws.
Still others believe that these restrictions go c. Who would support your ordinance? Who
too far and intrude on the rights of people using would oppose it?

20 Introduction to Law and the Legal System

 For example, a law that stated “it shall be illegal to gather on a street
corner without a good reason” would be considered too vague because
the phrase “good reason” is not clear. Another rule says that if there is
doubt as to the meaning of a word in a criminal statute, the word must
be strictly interpreted against the government. This usually means that
words are given their ordinary meaning by the court. These rules are
meant to encourage lawmakers to write clear laws and to ensure that
people are not punished for failing to obey an unclear law.
Clarity in legal language is important. For that reason, some l­ egislatures
now attempt to write in simple, clear English rather than traditional legal
language. Those who favor this practice argue that laws have been written
in language that is too complex and should instead be written so that a
person of ordinary intelligence and ­education can understand what is
expected.

Agencies
Many of the laws that affect you are made by government agencies.
Legislative bodies usually deal with problems in only a general way. They
authorize administrative agencies to develop rules and regulations to
make laws more specific. These regulations influence almost every aspect
of our daily lives and have the force of law. For example, Congress passed
a law requiring safe working conditions in places of employment. To
implement the law, Congress established the Occupational Safety and
Health Administration (OSHA). This agency develops specific regulations
Specific rules and regulations are
governing health and safety on the job. These regulations dictate specific
made by agencies such as the
requirements, such as the height of guardrails in factories, the number of Department of Homeland Security.
fire exits, and the type of safety equipment to be worn by employees in Why do you think this agency is
various occupations. needed?
Another example of a government agency is the
Environmental Protection Agency (EPA). It works with
other federal agencies, state and local governments, and
Native American groups to develop and enforce regulations
under existing environmental laws passed by Congress.
The EPA sets national standards that help protect human
U.S. Coast Guard photo by Petty Officer 3rd Class Cory Mendenhall

health and safeguard the national environment, with

enforcement delegated to state governments. The agency
also works with industry and government at various levels
on pollution ­prevention and energy conservation.
In response to the terrorist attacks of September 11,
2001, the federal government created new agencies and
reorganized existing ones to increase homeland security.
For example, in November 2002 President George W. Bush
signed a bill creating a new federal Department of
Homeland Security. The department’s primary mission is
to help prevent, protect against, and respond to acts of
terrorism on U.S. soil. An existing agency, the Department
of Transportation (DOT), was also reorganized when the
Transportation Security Administration (TSA) was created
within DOT to protect the nation’s transportation systems.

Lawmaking 21
 A scientist conducts research to
improve diagnostic tests for diseases.
How do administrative agencies work
to protect the well-being of
individuals?

Investigating the Law The administrative agencies with the greatest impact on your daily life
are those at the state and local levels. For example, a zoning commission
Where You Live and other local agencies where you live may have developed a plan that
Visit the official determines what kind of buildings can be located in specific parts of your
­website of your state town. A local agency may hold public hearings to determine whether a
government. Note that new restaurant can serve alcohol or feature live music.
your state has many Administrative agencies, then, are really hidden lawmakers, enacting
agencies. Which state numerous rules and regulations that affect business and industry as well
agencies are likely to as individuals. For example, regulations govern the amount of pesticides
be most important to that can be used on produce, the number of animals that can be killed by
you at some time in hunters, the ingredients that can be used in canned food, the costs of
your life? phone calls and electricity, the hours of operation for bars and restau-
rants, the qualifications of people employed in various professions, and
hundreds of other issues. In addition to their lawmaking functions, agen-
cies also administer government programs and provide many services.
Regulations issued by these agencies become law without being voted
public hearings proceedings that upon. However, agencies usually hold public hearings before issuing
are open to the public. During these proposed regulations. These hearings give individuals or businesses an
proceedings, evidence is opportunity to express their views on the proposals. In addition,
considered and then a decision is
regulations proposed by the federal government must be published in a
reached based on this evidence
special newspaper called the Federal Register. This allows people to learn
about and comment on proposed rules.
Some people criticize rules and regulations created by federal and state
CDC/James Gathany

agencies. Critics argue that these agencies have created bloated bureau-
cracies and require wasteful paperwork, interfering with the efficient
operation of the marketplace. Others say administrative r­ egulations give
meaning to laws passed by legislatures, protect ­consumers and workers,
and are an essential part of modern life.

22 Introduction to Law and the Legal System

 PROBLEM 2.4
Complete one of the following exercises as a research project.
a. Find an article in your local newspaper or online about an administra-
tive agency. What is the agency’s name? What does it do? Is it part of
the federal, state, or local government? What does the article say
about the agency?
b. Find evidence of an agency at work in your community. What agency
is acting? What action is the agency taking? Is there any way for the
public to have an impact on the agency? If so, how? Is the agency
part of the federal, state, or local government?

Courts
Law is also made by courts. Think about courtroom scenes you have
seen on television. These courts were conducting trials. The person who trial a court proceeding
loses a trial can sometimes ask a higher court to review and change the
result of the trial. These higher courts are called appeals or appellate appeals court a court in which
courts. When an appeals court decides a case, it issues a written opinion appeals from trial court decisions
are heard
that sets a precedent for similar cases in the future. All lower courts in the
jurisdiction where the precedent was issued must follow it. For example,
precedent court decision on a legal
if a state’s supreme court ruled that the state’s constitution required that question that guides decisions in
school funding be equalized throughout the state—richer and poorer future cases presenting similar
school districts would each have to spend the same amount per student— questions
then all lower courts in that state would have to follow that precedent.

International Lawmaking
International law is usually defined as the law that applies to the
conduct of countries. It is most often made when national governments
make treaties with each other or with a group of countries. A treaty is an treaty a pact between nations;
agreement or contract between countries. These ­treaties are sometimes if entered into by the United States
created by the joint action of countries or by actions taken by the United through its executive branch, the
Nations. Various international laws, usually made by treaty, regulate pact must be approved by
"two-thirds of the senators
commerce among countries, refugees crossing national borders, ownership present," under Article II, Section 2
of property including copyrights and patents, the environment, and many of the Constitution, to become
other areas. The U.S. Constitution provides that treaties are the supreme effective
law of the land if they are signed by the president and then ratified by a
two-thirds majority of the U.S. Senate.
Treaties are also used to determine whether one country has a legal
obligation to return someone accused of a crime or terrorist act to another
country. The process in which one country asks another country to sur-
render a suspected or convicted criminal is called extradition. According extradition the legal process in
to international law, each country is assumed to have authority over the which one country or state asks
people within its borders. To overcome this assumption, most countries another to surrender a suspected or
convicted criminal
have signed extradition treaties with other counties. The United States
does not have extradition treaties with a number of countries, however,
including China and North Korea.

Lawmaking 23
 Important international law has been made by a series of treaties, signed
The process of European
since 1950 by various European countries, which formed the European
integration has resulted in the Union (EU). These treaties established a European Parliament, which has
creation of the European Parliament, the power to make laws that promote political and economic cooperation
the body that passes the majority of among European countries. A very visible example of this has been the EU’s
European laws. Why are so many agreement to have a common currency called the euro. In 2018, twenty-eight
countries eager to join the EU? countries belonged to the European Union, and five others were candidates
for entry into the EU. Countries that join retain most of their sovereign
power to make laws that are binding within their borders. However, in order
to benefit all member countries, they do give up power in selected areas by
delegating some lawmaking authority to an EU-wide organization.
The United Nations (UN), formed in 1945 and headquartered in New
York City, has nearly 200 member countries, as well as many affiliated
organizations such as the Commission on Human Rights, United Nations
Educational, Scientific, and Cultural Organization (UNESCO),

©Leonid Andronov/railelectropower/©iStockphoto.com
International Monetary Fund (IMF), World Trade Organization (WTO),
World Health Organization (WHO), United Nations Children’s Fund
(UNICEF), International Labour Organi­zation (ILO), and the World Bank.
The UN also maintains a system of international courts and has become
an important institution in the area of international law. Countries that
join the United Nations agree to abide by the provisions of its charter.
The United States was one of the founding members of the UN and has
been its biggest financial supporter. Some people in the United States,
however, have criticized the UN for being inefficient, bureaucratic, and
slow to act, often wasting time and money. Others criticize the United
States for not fully supporting UN actions, especially when most UN
member countries do not agree with U.S. policy.

24 Introduction to Law and the Legal System

 The United Nations building in
New York City is the center of the
organization’s activities, which
support global c­ ooperation and
world peace.

PROBLEM 2.5
The government of a country has been very corrupt for many
years and has ­violated the human rights of many of its citi­zens by
jailing and executing opposition leaders who are all from one ethnic
group. The United States and most other countries have been critical
of this government for its actions. The opposition groups in the
country want to overthrow the government. The government reacts
by rounding up and executing hundreds of members of the ethnic
group leading the opposition.
The United States and many other governments around the world
speak out against this action. The United Nations is considering a
resolution authorizing sending UN troops into the country to stop
what some are calling genocide, the systematic killing of an ethnic or
cultural group. Some member countries believe the UN should not
interfere militarily in the internal affairs of another country.
The UN Charter (Article 55) states: “With a view to the creation of
conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, the
United Nations shall promote . . . universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion.”
Article 56 states that all members pledge themselves to take joint
and separate action in cooperation with the organization for the
achievement of the purposes set forth in Article 55.
a. If you were the president of the United States, would you instruct
our UN delegate to support the resolution authorizing the UN to
send troops into this country? Explain.
b. Assume the U.S. government does not think sending troops is the
best way to solve this problem, but more than two-thirds of the
countries in the UN vote in favor of the resolution. Should the
United States contribute troops to the UN effort? Explain.
c. After a presidential election and change of administrations in the
United States, assume the U.S. government believes that forceful
Ingram Publishing

action must be taken against this government, but most other

governments come to believe that the UN should not take joint
action in this case. Should the United States take action alone?

Lawmaking 25
 CHAPTER 3
Advocacy

Community members
advocate their cause by publicly
expressing their opinions.

One of the most important goals of Street Law is promoting positive

involvement in public affairs. This chapter discusses advocacy, or how civic
engagement can influence the lawmaking process. In our democracy, the
people are responsible for making the law, usually through their elected
representatives. While voting is, of course, an important obligation of
citizenship, an individual’s lawmaking role is much broader than voting.
Individuals are also responsible for working to change laws that are not
helping to solve problems and working for new laws and policies that
address problems in their communities, cities, states, or countries.

The Art of Advocacy

Advocacy is the active support of a cause. It also involves the art of
persuading others to support the same cause. Advocacy is based on the
careful gathering of facts, the development of excellent communication
skills, and the creation of an effective plan and time line. In order to
advocate effectively, you must determine what level or levels of government
are responsible for addressing the problem.
High school students all over the country have become effective advocates
on important questions ranging from national issues, such as violence
prevention and military activity abroad, to local concerns, such as
homelessness and school uniform policies. In some instances students have
Realistic Reflections

advocated change with their local schools and town or city councils. In
other instances they have communicated with state or congressional
representatives. For example, high school students concerned about
smoking in student bathrooms lobbied for membership on their school’s

26
 TAKING ACTION: Law and Democracy
Changing the Law:
Research and Role-Play
Work with your classmates in small groups to
research one of the proposed laws listed below.
Then answer the questions that follow. Each
group will share its findings. The proposed
laws would:
• require motorcycle riders of all ages to
wear an approved safety helmet while rid-
ing on public roads.
• legalize the use of marijuana for medical
purposes while under the supervision of a
doctor.
• require voters to have a state-issued ID in
order to vote.
• suspend a person’s driver’s license for PROBLEM 3.1
failing to pay court-ordered child support.
• require every worker in the country to a. What arguments could be presented for
carry a national identification card with and against the proposed law?
biometric information, such as a finger- b. What groups, organizations, or businesses
print, to make sure that all employees are likely to lobby for or against the
have legal status. proposed law? What techniques could
they use to influence legislators?
c. How could social media be used to advo-
cate for or against the proposed law?
d. Predict the outcome if your community
held a voter referendum on the proposed
law. Explain your reasons.

safety committee. When they joined the committee, they worked with the
school resource officer, building principal, and assistant principal to
convince their county board of education to give them funds to purchase
smoke detectors. The students then lobbied their state representative, who
was so impressed with their solution that he introduced a bill in the next
legislative session to make smoke detectors mandatory in public school
bathrooms across the entire state.
©Lars A. Niki

Advocacy 27
Lobbying
Lobbying is a way to influence the
lawmaking process by convincing
lawmakers to vote as you want them to.
The word lobbying comes from the
seventeenth century, when interested
persons would corner legislators in the
outer waiting room of the legislature—
the lobby. While lobbying often has a
negative connotation, it is actually a
basic right protected by the U.S.
Constitution. Lobbying involves the
right of free speech and often other
rights, such as assembly, association,
and freedom of the press.
A lobbyist is someone who works to
convince a lawmaker to vote for or
against a particular issue. Anyone can
be a lobbyist. As a private individual,
you can lobby elected officials on issues
that affect your life. You can influence
elected officials by expressing your
opinions individually or as part of a
group, either in person or by letter,
petition, phone, or e-mail. Lobbyists
Many individuals and groups lobby
also use political contributions, ads, favors, letter-writing campaigns, and
for their causes in Washington, D.C.
other techniques to influence legislation on various issues.

Steps to Take
Writing a Public Official • E
 xplain why you are writing. Ask the
official to state his or her own position on
• W
 rite in your own words. Personal ­letters the issue. Request a reply and ask the
are far more effective than form l­etters or official to take some kind of definite action.
petitions. Explain to the official how the • A
 lways put your return address on the
issue will affect you and your friends, letter, sign and date it, and keep a copy.
family, or job. Your letter does not have to be typed, but
• K
 eep your letter short and to the point. it should be legible. Perhaps most
Deal with only one issue per letter. If you importantly, it should reach the official
are writing about some s­ pecific proposed before the issue is voted on.
Purestock/SuperStock

bill or legislation, identify it by name • C

 ontact ­public officials by using e-mail or
(for example, the National Consumer faxing a letter to their office.
Protection Act) and by number if you
know it (for example, H.R. 343).

28 Introduction to Law and the Legal System

 Today, special interest groups and organizations lobby on behalf of
every imaginable cause and issue. Businesses and organizations hire
­professional lobbyists to influence federal, state, and local legislators. For
example, the National Rifle Association employs lobbyists to oppose
restrictions on gun ownership and use, while Handgun Control, Inc.,
lobbies for gun control. Literally thousands of professional lobbyists work
in Washington, D.C., and in state capitals throughout the country. Those
who lobby the federal government must register with Congress and file
lobbying influencing or persuading
reports four times a year. In these reports, they must identify their clients legislators to take action to
and the specific bills on which they are working. They must also indicate introduce a bill or vote a certain
how much money they have been paid for their lobbying work. In addition way on a proposed law
to lobbying for laws, grassroots groups can advocate for candidates.
Professional lobbyists have advantages over grassroots lobbyists grassroots lobbyist a person, or
because they may have more money behind them and they know group of people, who works to
­legislators and their staffs personally. They know where the levers of convince a lawmaker to vote for or
against a particular issue by
power are. They know who to talk to and how best to talk to them.
participating in rallies, meeting
Nevertheless, grassroots lobbyists can be very effective, particularly when representatives, or letter writing
they join with others. Demonstration of grassroots support by large num- campaigns
bers of people is a very effective lobbying technique because legislators
care about what their voters think.
Many critics of the lobbying system in the United States say it enables
some people and businesses to “buy legislation.” It is true that ­contributors
to political campaigns may have greater access to legislators and greater
influence over how they vote on certain issues. However, others argue
that lobbying is an integral part of American democracy. They claim that
the use of money and influence is a legitimate way for groups to make
their views heard. In general, however, issues facing lower-income
Americans struggle to gain attention in the political system at least in
part because those Americans cannot afford to form associations,
contribute money, and hire lobbyists.

PROBLEM 3.2

a. S elect a current issue that concerns you. Search the Internet to find
sites that deal with this issue. What information is available on each
site? Does the information seem reliable? How can you tell? Do any
of the sites suggest strategies you could use to lobby for the issue?
b. Select a current issue that concerns you. Write a letter about it to a
public official. Use the guidelines listed in the Steps to Take feature
on page 31 to help you compose your letter. For example, you may
write to your mayor, city council member, state legislator, congres-
sional representative, or senator. E-mail your letter to the elected
official and then analyze any reply you receive. Did he or she answer
your questions or provide additional information?
c. Do persons with more money have greater influence over legislators
than those with less money? If so, is this unavoidable in a society
like ours, or should steps be taken to reform the lobbying and
campaign finance systems?

Advocacy 29
 Steps to Take
Guidelines for Advocates • c oordinate a public rally, march, or vigil;
• testify at a public hearing on your issue;
Before you begin to advocate, • lobby in person; or
think through these steps for • attend a community meeting.
success:
6. Plan for success. What needs to be done
1. Identify the issue. Think about your school first, second, etc.? Who will be responsible
or community. Is there a problem that for what? How will you know you have
needs to be addressed? How do you know been successful?
it is a prob­lem? Can a new policy or rule 7. W
 ork with the media. The media is the
address this issue? best tool to get your solution out to a large
2. Set a goal. Visualize a better tomorrow by audience. Seek to explain your issue and
answering the following questions: solution in just a few sentences.
• What solution are you proposing? Incorporate your message into the
following strategies:
• How will your community be improved
if your solution is implemented? • start a social media campaign around
the issue;
• What unintentional problems might be
caused by your solution? • write a blog about the issue;
• upload a video or participate in a podcast
3. Become an expert on the issue. Know the
about the issue; and
facts. Collect information to support your
position. Monitor social media, search the • circulate posters, flyers, and brochures.
Internet, and interview com­munity 8. Create a resource pool. Money is only one
members. Learn both sides of the issue. resource that may be useful in your effort.
4. Recruit allies. Identify roadblocks. Identify Identify resources that exist within your
coalitions already working on your issue. group. What talents and skills do you and
Social media features like hashtags, trend your team have to offer? Do you know
feeds, and contact networks can help you a business or orga­nization that may be
recruit allies and identify opponents. Why willing to donate space, food, or other
would opponents be against your items to advance your cause?
proposed policy? What strategies might
they use to resist your efforts? Who will be
their allies?
Three Golden Rules for Advocacy
5. Identify your strategies. To advocate
effectively, you will likely use a variety 1. C
 larity: create a single message
of Take Action Strategies. Consider the and stay focused on it.
following: 2. Q
 uantity: create as large a network
• create a social media group; as possible to support your cause.
• send out e-mail blasts; 3. F
 requency: get your message out
• conduct a survey; to as many people as possible as
• create a petition, either digital or physical; frequently as possible.

30 Introduction to Law and the Legal System

 Voting
Voting is a basic constitutional right. Eligible voters may vote for presi-
dent, vice president, two U.S. senators, and one U.S. representative. They
may also vote for governor, state legislators, and numerous other state,
county, tribal, and local officials.

Initiative and Referendum

In a representative democracy, laws are usually made by elected
legislators acting on the voters’ behalf. However, in some situations, the
initiative a procedure by which
people can vote directly on proposed laws. Initiatives and referenda allow
voters can propose a law and
citizens to circulate petitions and put proposed laws on the ballot. An submit it to the electorate or the
initiative is a procedure that enables a specified number of voters to legislature for approval
propose a law by petition. The proposed law is then submitted to either
the electorate or the legislature for approval. A referendum occurs when referendum a procedure in which
a legislative act is referred to voters for final approval or rejection. Recent issues are voted on directly by the
state referenda have been held on issues, such as gun control, gay rights, citizens rather than by their
abortion, environmental protection, and funding for schools, parks, roads, representatives in government
and other government programs. Many states also permit recall elections,
recall the removal of an elected
which allow voters to remove elected officials from office. official from office by a vote of the
Some people argue that allowing voters to express their opinions people
directly through initiatives or referenda, rather than indirectly through
representatives, is a more democratic system of lawmaking. Rather than
being a true democracy, the United States is technically a republic because
the people elect representatives to vote on laws instead of voting on them
directly. Supporters of the initiative and referendum processes point out
that they promote direct involvement in lawmaking and reflect the true
will of the people. Others argue that allowing direct voting on laws will
sometimes result in majority populations voting to take away rights from
minorities.
Some form of direct voting exists in 30 states. In 1897 South Dakota
became the first state to adopt statewide initiative and popular referen-
dum systems. Most of the states that now have this system adopted it
during the first two decades of the twentieth century. Many laws have
been ­proposed through the initiative process, including the right to vote
for women, the eight-hour workday for government employees, term
Ariel Skelley/Getty Images

Students get involved in elections

by encouraging people to vote.

Advocacy 31
 limits for elected officials, campaign
finance reform, and environmental
protection. This system has also been
used to pass laws and ­establish public
policy related to affirmative action.

Who Can Vote?

To register to vote, you must be a
U.S. citizen by birth or naturalization,
at least 18 years old by the date of the
election, and a resident of the com-
munity in which you register. It is a
violation of federal law to falsely claim
U.S. citizenship in order to register to
vote. You cannot register to vote in
more than one place at a time. A few
communities have changed their laws
to allow those who are 16 and 17 to
register and vote in local elections.
Registering to vote is handled by
each state. Applicants usually register
by completing an application form in
person or by mail. The National Voter
Registration Act, also known as the
Motor Voter Act, requires states to
make registration forms available not
only at motor vehicle departments,
Women were effective in l­obbying.
but also at numerous state offices, welfare offices, and agencies that serve
Their defeat of local candidates was
especially ­persuasive in convincing
the disabled. In addition, some organizations and states make voter reg-
Congress to pass the Nineteenth istration forms available on the Internet. As of 2018, 17 states plus the
Amendment. Why do some people District of Columbia allowed voters to register on Election Day.
believe that voting is the most Where states have adopted same-day voter registration, voter participa-
­important ­political right? tion has increased. In some other states, steps taken to prevent voter

Library of Congress, Prints and Photographs Division [LC-DIG-npcc-01705]

fraud have made it more difficult to vote. In 2018 the Supreme Court
considered an Ohio law that eliminated people from the voter rolls if they
failed to vote in a few elections and then did not respond to a notice from
an election official. In a 5-4 decision, the Court found that this law did not
violate the Constitution.
A fair election requires that ­voters have access to information about the
candidates, the issues, and the details of the voting process. Many
organizations—some partisan and some nonpartisan—provide election
information online. The League of Women Voters (www.lwv.org) provides
online information about federal, state, and local elections and candidates.
Information about federal elections, including past statistical data, is
available from the Federal Election Commission (www.fec.gov). The FEC
also provides online access to the National Mail Voter Registration Form,
which has been translated into Spanish, Chinese, Filipino, Japanese,
Korean, Vietnamese, and Tagalog to encourage registration by language
minority groups.

32 Introduction to Law and the Legal System

 Voting restrictions have been used in the past as a way to prevent cer-
Constitution
THE
tain groups from participating in elections. African Americans did not
receive the right to vote until 1870, with the passage of the Fifteenth
Amendment. Women gained the right to vote in 1920. Congress did not The right of citi­zens of the
grant citizenship and therefore the right to vote to all Native Americans United States to vote shall not
until 1924. Until the passage of the Voting Rights Act in 1965, some states be denied or abridged by the
had barriers such as poll taxes, literacy tests, and character exams that United States or by any State
kept millions of people from voting. In 1971 the passage of the Twenty- on account of race, color, or
Sixth Amendment gave 18 year olds the right to vote. previous condition of
Today there are disagreements in many states about whether it is good servitude.
policy to require people to have ID cards in order to vote. In 2008 the —Fifteenth Amendment
Supreme Court said in Crawford v. Marion County Election Board that
requiring voter ID cards did not violate the Constitution. Those in favor of
ID cards think that it is now too easy to cast fraudulent votes, while those
opposed argue that requiring ID cards is unnecessary and would overly
restrict minorities, the elderly, and the poor from being able to vote.

Participating in Elections Investigating the Law

According to the U.S. Census Bureau, 70 percent of the voting age Where You Live
population was registered to vote in 2016, and 87 percent of those
registered did in fact vote in the presidential election. This means that Learn more about how
61 percent of the voting-age population voted in that election. Typically, to vote in your commu-
turnout in national elections is higher in presidential election years nity. Where and how
(e.g., 2008, 2012, 2016) and lower in years with only Congressional does one register to
elections (e.g., 2010, 2014, 2018). Data from recent elections also suggest vote? Is there a resi-
that lower income people, members of some racial minorities, and persons dence requirement?
who have not attended college vote at rates significantly lower than the If so, what is it? When
rate for middle-class whites. Young people typically vote at much lower and where does one
rates than older people. Many countries—including some of the world’s go to vote?
newest democracies—have much higher voter turnout for national
elections than the United States.

PROBLEM 3.3

a. Make two lists: one of all the reasons for voting and another of all
the ­reasons for not voting.
b. The following proposals have been made to encourage more people
to vote. Do you favor or oppose each proposal? Explain your answers.
• Allow people to register and vote on the same day.
• Lower the voting age to 16 so some high school students could
vote.
• Keep the polls open for a week instead of one day.
• Automatically register everyone who has a driver’s license.
• Allow for voting up to a month early.
• Change election day from a weekday to a weekend day.

Advocacy 33
DELIBERATION
Should voting be compulsory in the United States?
Free and fair elections are essential to a Some people in the United States are
democracy. They make true representative concerned about low voter turnout. They fear
government possible. Through voting, people that if citizens do not vote, unqualified or bad
express their views about government. They leaders will be elected or stay in power. They
choose leaders who they believe will improve doubt that leaders will be accountable. How
their country and community. But what can leaders speak for “the people” when so
happens when people choose not to vote? few people actually chose them? They worry
What does that indicate about democracy? that variations in voter participation among
In the United States, voter turnout can vary different groups mean that the government is
by state, by election type, and by a number of not truly representative of everyone.
other factors. Only about 56 percent of eligible Not everyone agrees that voter turnout is a
voters cast ballots in the 2016 U.S. presidential problem. Some people want voters to
election. Usually, even fewer voters turn out demonstrate their desire to vote, even if that
for state or city elections. A 2016 report from means that turnout numbers remain low. In a
Portland State University revealed that local 2017 Pew Research Center poll, 39 percent of
election turnout in 10 of America’s 30 largest Americans said that citizens should have to
cities was less than 15 percent. prove they want to vote by registering in
Voter turnout varies widely based on age, advance. There are other concerns that by
income level, and race or ethnic group. making voting easier, the government would
American voters 65 and older turn out at increase opportunities for voter fraud as well.
30 percentage points higher than 18- to For some of these reasons, states vary in their
24-year-olds. Americans earning $100,000– registration and voting requirements.
$150,000 per year vote at a rate that is Some people believe that citizens should
30–50 percentage points higher than those be required to vote. This is called compulsory
earning less than $20,000 per year. And in the voting. In countries where compulsory voting
2016 election, white American voter turnout exists, voters are not required to vote for any
was 7 percentage points higher than black particular candidate, but they must be able to
Americans, 16 percentage points higher than prove they voted. In 22 democratic countries,
Asian Americans, and 18 percentage points citizens are required to vote in national
higher than Hispanic voters. elections. In some cases, without a valid
excuse, they may face some form of
punsihment if they do not vote.

34 Introduction to Law and the Legal System

Should voting be compulsory in the United States?
Consider the arguments.

Voting should be compulsory in Voting should not be

the United States. compulsory in the United States.
Elections with high rates of voter participation Authoritarian governments often coerce
are more legitimate because they better people to vote and to attend political rallies
represent the will of the people. to give the appearance that their leaders are
Compulsory voting increases voting among popular. When so many people vote,
people who are poor, are less educated, and compulsory voting makes a corrupt election
were previously disenfranchised. At one seem legitimate. Voluntary voting makes
point, some U.S. states required voters to democracy more transparent.
pay poll taxes and pass literacy tests. These Compulsory voting may be particularly bur-
state requirements aimed to disenfranchise densome to low-income voters who may not
African Americans, but also impacted poor have the flexibility to take time off of work to
people and illiterate people. The legacy of vote. In countries that fine people who don’t
this practice continues today, as African vote, penalties will also more harshly impact
Americans, poor people, and less educated these low-income voters.
people turn out to vote at lower rates. There are easier ways to increase voting.
Compulsory voting amplifies the voices of Democracies should better educate potential
people who have previously been disenfran- voters about the issues and the candidates’
chised, which is good for democracy. plans. Then people will know what is “at
Compulsory voting laws do increase voter stake” and why they should vote. One strat-
turnout. In national elections compulsory vot- egy is same-day voter registration, which has
ing has increased turnout by 10-15 percentage increased turnout in states with the practice
points and even more in local and regional by 3–7 percent.
elections. In Australia, where voting is compul- People who are being forced to vote might
sory, voter turnout averages 95 percent. not make wise or informed decisions. They
Compulsory voting laws reinforce that voting may simply vote for someone at random and
is a vital part of democratic citizenship. negate the votes of people who do care. Our
Furthermore, compulsory voting can create a democracy does not need more participation
feeling of civic duty and responsibility among by people who do not know or care about
a nation’s people. the candidates or issues.

GUIDING QUESTIONS

1. What are the two most compelling reasons to support the deliberation question?
2. What are the two most compelling reasons to disagree with the deliberation question?
3. What is one area of this deliberation where the two sides might find common ground?

i Portland State University, “Who Votes for Mayor?,” 2016, http://www.whovotesformayor.org/

ii National Conference of State Legislatures, “Same Day Voter Registration,” March 27, 2018, http://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.

Advocacy 35
 Campaign Finance Reform
The 200-year tradition of privately financed elections in the United
States has been accompanied by 200 years of campaign finance reform.
However, efforts to counteract the influence of money on politics have
usually been unsuccessful. Politicians have been quick to condemn fund-
raising scandals but slow to agree on laws to prevent them.
According to the League of Women Voters, those who support cam-
paign finance reform want to improve methods of financing political
campaigns for several reasons: to ensure the public’s right to know, to
combat corruption and undue influence, to enable candidates to compete
more equitably for public office, and to promote citizen participation in
the political process. Some groups argue for complete public funding of
certain elections.
In recent years, federal elections have become extraordinarily expensive.
To win, most candidates have to be rich, skillful fundraisers, or both. In fact,
the candidate who raises the most money seldom loses the election.
Critics of the current system argue that (1) people of lower or middle
income cannot run for office successfully because they cannot raise huge
sums of money; (2) special interests receive favors in exchange for sub-
stantial campaign contributions; and (3) elected officials spend too much
time raising money and not enough time doing their jobs.
Others argue that political contributions are a form of speech protected
by the First Amendment to the U.S. Constitution. From their perspective
it violates a voter’s or a candidate’s constitutional rights to limit the
amount of money that can be contributed to or spent on a campaign. In
addition to their constitutional arguments, those opposed to reform in
this area contend that as a practical matter it is difficult, if not impossible,
to create enforceable campaign finance reform laws.
In 1976 the Supreme Court ruled in the case of Buckley v. Valeo that
Delegates holding signs in political contributions and expenditures are protected by the First
support of Barak Obama and Amendment. In 2010 the Supreme Court extended First Amendment
Joe Biden in 2008. protections to unions and corporations in Citizens United v. Federal Election
Commission. As a result of this case
and others, the government cannot
restrict independent political
expenditures by corporations,
unions and other associations of
people. And there are First
Amendment limits on the
government’s power to restrict
contributions to candidates by
individuals.
Jill Braaten/McGraw-Hill Education

An independent expenditure is
one made by a group that is separate
from a candidate and that does not
coordinate with the candidate.
During the 2018 mid-term elections,
more than $1.2 billion was spent on
advertisements by such groups.

36 Introduction to Law and the Legal System

Some argue that this spending is good because advertisements inform the
people and encourage candidates to take a stand on important issues.
Others argue that these expenditures might be not completely independent
of campaigns and because of their size could have an undue, corrupting
influence on candidates.
A special campaign finance problem arises in states where judges are
elected, rather than appointed, to their positions. Some states that ini-
tially appoint judges later make them stand before the voters in retention
elections. An advantage of electing judges is that this builds a degree of
accountability into the system. However, some believe that requiring
judges to raise money to finance their campaigns compromises judicial
independence. For example, studies of judicial elections have shown that
the primary contributors to these campaigns are ­lawyers and law firms.

PROBLEM 3.4

a. Which of the following proposals is closest to your view of campaign

finance reform? Explain your reasons.
• The only way to take money out of politics is to have full federal
funding of presidential and congressional elections.
• In a free country with democratic elections, it makes no sense to
try to limit how much money voters and candidates can contrib-
ute to campaigns. If people have the money and want to spend
it on campaigns (either their own campaign or for the candidate
of their choice), then they should be able to.
• We have to balance the rights of those who want to contribute
money to campaigns against the need to fight corruption and
undue influence in politics. The best way to do this is through
disclosure laws: let everyone see who is giving money to
candidates. If elected officials favor the special interests that
funded their campaigns, the voters can vote them out of office in
the next election.
b. Which of the following is closest to your view of judicial elections?
Explain your reasons.
• Money and judicial elections do not mix. Independent commis-
sions should appoint judges. Politics should be taken out of
choosing judges.
• The chief executive—the governor—should nominate judges, and
the state legislatures should confirm them. The federal judicial
system works this way and should be our model in the states.
• In a democracy we have to trust the people. Judges should be
elected just like other officials.

Advocacy 37
 CHAPTER 4
Settling Disputes

Conflict is part of everyday life.

Effective community advocates work to solve problems in their ­community

by proposing and lobbying for better laws and public p ­ olicies. In doing so,
they often use the legislative process to resolve ­conflict. Conflict in the pub-
lic arena—sometimes called controversy—creates an important opportunity
to learn about issues that are of public concern in a democracy. The ability
to collect the facts about an issue, formulate an opinion, listen to competing
ideas, and discuss and debate the best course of action are all valuable civic
skills in settling conflict. As you will learn later in this unit, courts can also
help resolve conflicts, but most conflict is settled before it ever gets to court.
Because conflict is a natural part of everyday life, it is important to
consider how to handle it. We often think of conflict as a problem, but it
can also be productive. When conflict is managed responsibly, it can provide
a great opportunity to learn. Therefore the most important q ­ uestion is not
whether there will be conflict in your life, but how you will respond to it.
There are sometimes disadvantages in going to court to resolve conflict.
The court process can be time-­consuming and expensive. Going to court
can even make some problems worse. For example, in divorces and child
custody disputes, going to court often causes extreme anger and bitterness.
Some people feel that by going to court, they will lose even if they win!

Methods for Solving Disputes

©Chris Ryan/age fotostock

Among the most common methods for solving disputes out of court are
negotiation, arbitration, and mediation. As you will learn, negotiation is the
most informal of these methods. Mediation is more formal than negotiation.
Arbitration is still more formal, and in some ways it resembles going to court.

38
 Negotiation is the process by which people involved in a dispute dis- negotiation the process of
cuss their problem and try to reach a solution acceptable to all. It is import- discussing an issue to reach a
ant to learn to negotiate, because the skills involved in handling conflict settlement or agreement
responsibly are used every day by people in all aspects of life. You negotiate
when you have a disagreement with your parents, your friends, or your
teacher and you work out an agreement. The informality of negotiation
makes it ideal for many types of problems. Sometimes people hire attor-
neys to negotiate for them. For example, people involved in auto accidents
sometimes hire attorneys to negotiate with the insurance company over
payments for injuries or damages to their cars. However, even if you use an
attorney to negotiate, you must approve any agreement before it becomes
final. Attorneys sometimes file a case in court and then still attempt to
work out a settlement, or agreement, before the case goes to trial. A large settlement a mutual agreement
number of civil cases are settled this way, saving both time and money. between two sides in a civil lawsuit,
It is helpful to think of n ­ egotiation in three phases—preparation for made either before the case goes
to trial or before a final judgment
negotiation, the negotiation itself, and post-negotiation. Each phase con-
is entered, that settles or ends the
tains steps that encourage a fair negotiation process. Each party in the dispute
dispute should follow all of the steps in each phase to make sure the pro-
cess helps to resolve the problem.
The steps in the first phase help both parties prepare to negotiate. First, all
involved should come to the discussion with a sincere interest in settling the
problem. Then the issue that is causing the conflict must be identified as
clearly as possible. Everyone should think about what is really causing the

FIGURE

4.1 Methods of Dispute Resolution

Negotiation Arbitration

Informal Talk Mediation Court Action

Less formal More formal

Just the disputants settle things Many people involved
Not legally binding Enforceable by courts

There are several ways to resolve disputes without violence. Analyze the Data How is negotiation different from
mediation? From arbitration?

C04-01A-879983
ac Settling Disputes 39
 Divorce negotiations often problem and try to separate the demands (positions) from what the parties
become heated as both parties try to really want (interests). In the third step, each party should consider the issue
agree upon the best p ­ ossible
from the perspective of the other in order to help them understand the con-
solutions to their p
­ roblems. Why is it
cerns and feelings on the other side of the conflict. Finally, each party should
important to separate the demands
(positions) from what the parties sort out his or her feelings about the problem so each can understand how the
really want (interests) during the interests of the other party differ from their own. After this step, both parties
negotiation process? should identify two workable solutions that might resolve the problem.
The steps in the second phase focus on the negotiation itself. Both par-
ties must work together to identify the real issue that needs to be resolved.
This stage involves listening carefully, understanding what is being said,
and asking questions to clarify and gain more information. Once the issue
is identified, both parties should work together to create a list of as many
solutions to the problem as possible. Then the two or three most workable
solutions should be identified from this list. Each party should be realistic
about the solutions that are chosen, perhaps by giving examples so every-
one can see how the potential solution will work. To conclude the negoti-
ation, the main points of the agreement should be repeated to be sure that
both parties understand them. It is also a good idea to write down the
agreement and decide what should happen if the agreement is broken.
In the third phase of the negotiation process, both parties to the dispute
should make a few final decisions. For example, they should decide what to
tell others about how the problem was handled. Everyone involved should
arbitration a way of settling a be in agreement on what people outside the negotiation will be told. This
dispute without going to trial. The step could help deter problems in the future. In addition, both parties
E. Audras/PhotoAlto

parties who disagree select one or

more impartial persons to settle the
should be willing to discuss the problem again if the agreement does not
argument. If the arbitration is seem to be working.
binding, then all parties must In arbitration, both parties to a dispute agree to have one or more
accept the decision. persons listen to their arguments and make a decision for them. The

40 Introduction to Law and the Legal System

 FYI For Your Information
Steps in a Typical
Mediation Session
Step 1. Introduction
The mediator helps the people involved in the dispute feel at
ease and explains the ground rules for behavior during the
mediation. Such rules can include agreeing to remain seated and
agreeing that any party may request a break during the mediation.
Step 2. Telling the Story
Each person tells what happened. The person who brings
up the problem usually tells his or her side of the story first.
No interruptions are allowed. Then the other person explains
his or her side. These people are the disputants.
Step 3. Identifying Positions and Interests
The mediator tries to make certain that each disputant is clearly
understood by listening carefully to each side, summarizing each
person’s view, and asking questions. Sometimes the mediator will
encourage the disputants to ask questions and summarize each
other’s point of view in order to check for understanding.
Step 4. Identifying Alternative Solutions
The disputants think of possible solutions to the problem. The
mediator makes a list and then asks each disputant to explain his or
her feelings about each possible solution. Sometimes in a difficult
situation, the mediator might also meet with each disputant
separately to discuss his or her concerns.
Step 5. Revising and Discussing Solutions
Based on the feelings of the disputants involved, the mediator
may help the disputants change some of the possible solutions and
identify a better solution to which the disputants can agree.
Step 6. Reaching an Agreement
The mediator helps the disputants reach an agreement that both
can accept. The agreement is written down. The disputants also
discuss what will happen if they find out the agreement is not
working for them.

arbitrator is like a judge, but the process is less formal than a trial.
Arbitrators, like judges, have the authority to make the final decision,
and the parties must follow it (except in nonbinding arbitration).
Arbitration is common in contract and labor-management disputes and
in some international law cases. Agreements between labor unions and
employers include arbitration clauses. This means that the union and the
employer agree in advance to submit certain disputes to arbitration and
to be bound by the arbitrator’s decision. mediation the act or process of
Mediation takes place when a third person helps the disputing parties resolving a dispute between two or
talk about their problem and settle their differences. Unlike arbitrators, more parties

Settling Disputes 41
 Investigating the Law mediators cannot impose a decision on the parties. The agreement is the
result of the parties’ willingness to listen carefully to each other and come
Where You Live up with a reasonable settlement to the problem.
Research to find The mediator acts as a neutral third party by listening carefully to both
out if there are any sides. He or she also tries to help the parties understand each other’s
programs in your ­positions and find ways to resolve the dispute. Mediation is voluntary; the
community for people disputants themselves must reach a decision about the problem. Mediation
who want an allows the disputants to air their feelings, avoids placing blame, and con-
alternative to going to centrates on the future relationship between the parties. The key issue is
court. What types of how the disputants will work or live together after the mediation.
disputes do these Mediation is used to solve a variety of disputes. Community mediation
programs address? programs help settle disputes between husbands and wives, landlords
and tenants, and consumers and businesses. For example, the Better
Business Bureau (BBB) may mediate disputes between shoppers and store
owners. In other places, neighborhood justice centers help settle disputes
between community residents. Government agencies, newspapers, and
ombudsperson a person who has some ­universities have ombudspersons, people who have the power to
the power to investigate reported ­investigate complaints and then help the parties reach some agreement.
complaints and help achieve fair To locate a mediation program in your community, contact your local
settlements court, district ­attorney’s office, or social services agency.
The key to the success of both negotiation and mediation is that the ideas
for resolving the conflict come from the people who have the ­conflict. The
disputants take responsibility for their actions and work out the problem.
Unlike court cases, both of these processes result in an agreement that is
focused on the future relationship between the d ­ isputing parties. Because
the solution comes from the parties, they are more ­interested in making the
solution work.
The parties do not provide the solution in an arbitration. The ­arbitrator
determines the solution. However, parties to a contract often include an
agreement to resolve disputes through arbitration because it is faster and
less expensive than going to court.

PROBLEM 4.1
Examine the following situations and decide the best method for
solving each problem. Consider informal discussion, negotiation,
arbitration, mediation, going to court (including small claims court),
seeking help from a government agency, and other methods. Explain
your answers.
a. Two sisters share a room. However, they disagree over how the
room should be arranged and decorated.
b. A new plasma television breaks after two weeks, and the sales-
person refuses to fix it.
c. A landlord will not make needed repairs because he believes
the tenant caused the damage.
d. A fast food restaurant and an employee disagree over the
wages and conditions of employment.
e. The Internal Revenue Service sends you a letter claiming that
you owe another $2,000 in taxes. You disagree.

42 Introduction to Law and the Legal System

 TAKING ACTION: Law and Democracy
Problems at the Mall
Magda, David, and Rashida have been
friends since the sixth grade. One of their
favorite activities is to go to the mall and
look around in the stores. Sometimes they
make purchases and sometimes they
just window-shop. There are lots of young
­people who do this, and it is fun to see
people and hang out.
Recently, a number of stores at the mall
have experienced an increase in shoplifting
and vandalism. As a result, the stores have
made a policy that no one under 16 years
of age can enter without a parent or
guardian. The new rules also state that if
you are between the ages of 16 and 18 you
cannot enter the store in groups larger than
two. Other teens have to wait outside until
each pair leaves. Store owners have
threatened to call the police if the young the police, but they do not understand why they
people give them any trouble about the have to be treated as troublemakers when they
new policies. have not done anything wrong.
This policy makes Magda, David, and Rashida The manager of the shopping mall, along with
angry. They believe it is unfair. After all, they are one of the store owners, has agreed to meet with
paying customers and spend money in these two of the teens and a mediator to try to find some
stores. Why is the rule directed only at young workable solutions.
people? They do not want to get into trouble with

PROBLEM 4.2
In preparation for the mediation ­session, the d. What do you think the starting position
disputants should c­ onsider the following and underlying interests of the other
issues: side will be?
a. What are your concerns? How would you e. Identify two workable solutions that
state the issue in the dispute? would solve the conflict.
b. What is your starting position (demand)? Use the list of Steps in a Typical Mediation
What are your underlying interests (what Session to walk through the process and
do you really want)? develop a reasonable solution for the
c. What is the best conceivable outcome disputants.
from your perspective?
Purestock/SuperStock

Settling Disputes 43
 CHAPTER 5
The Court System

The use of juries builds the

values of democracy into the
court system.

trial courts courts that listen to

testimony, consider evidence,
and decide the facts in a
disputed situation In the United States, there are many court systems. Each state has its own
court system, and the federal court system exists at the national level.
parties the people directly
Each of these systems has trial and appeals courts. There are also a number
concerned with or taking part in
any legal matter
of tribal justice systems as well as a system of military justice. The highest
court in the land is the Supreme Court of the United States. The Supreme
plaintiff in a civil case, the Court hears appeals from the other court systems.
injured party who brings legal
action against the alleged
wrongdoer Trial Courts
Trial courts listen to testimony, consider evidence, and decide the
prosecutor the state or federal facts in disputed situations. Evidence can be anything that might tend
government's attorney in a to prove or disprove an issue in the case. In a trial there are two parties,
criminal case or sides, to each case. In a civil trial, the party bringing the legal action
is called the plaintiff. In a criminal trial, the state or federal government
defendant the person against
whom a claim is made. In a civil
initiates the case and serves as the prosecutor. In both civil and crimi-
suit, the defendant is the person nal trials, the party responding to the plaintiff (civil) or prosecution
being sued; in a criminal case, (criminal) is called the defendant. Once a trial court has made a deci-
the defendant is the person sion, the losing party may be able to appeal the decision to an appellate,
charged with committing the or appeals, court.
crime. The trial system in the United States is an adversarial system. This
means it is a contest between opposing sides, or adversaries. The theory
moodboard/Getty Images

adversarial system the judicial

is that the trier of fact (the judge or jury) will be able to determine the
system used in the United
States. It allows opposing
truth if the opposing parties present their best arguments and show the
parties to present their legal weaknesses in the other side’s case.
conflicts before an impartial The adversarial process is not the only method for handling legal
judge and jury. disputes. Many countries have different trial systems. Some European

44
 Judges play a more active role
under the inquisitional system (left)
than they do in the adversarial system
(below). In what ways are judges more
involved in the court proceedings of
an inquisitional system?

countries use the inquisitional system, in which the judge is active in inquisitional system a European
questioning witnesses and controlling the court process, including the method for handling disputes in
gathering and presenting of evidence. These judges can order witnesses which the judge plays an active role
to appear, conduct searches, present and comment on evidence, and, in in gathering and presenting
evidence and questioning witnesses
general, take the lead role in trying to uncover the truth. This system
differs from the adversarial process, in which these matters are left to the
competing parties, with a decision being made by the judge or jury based
(t) Aaron Roeth Photography, (b) ©Ocean/Corbis

on the arguments and evidence presented.

The adversarial process is sometimes criticized. Critics say that it is not
the best method for discovering the truth with respect to the facts of a
specific case. They compare the adversarial process to a battle in which
lawyers act as enemies, making every effort not to present all the evi-
dence. According to this view, the goal of trial is “victory, not truth or
justice.” Despite its drawbacks, the adversarial process is the cornerstone
of the American legal system. Most attorneys in the United States believe
that approaching the same set of facts from adversarial perspectives will
uncover more truth than would other methods.

The Court System 45

 PROBLEM 5.1
a. D o you think the adversarial system is the best method for solving
disputes? Why or why not?
b. Indicate whether you agree or disagree with the following state-
ment: “It is better that ten guilty persons go free than that one
innocent person suffer conviction.” Explain your answer.
c. In a criminal case, should a lawyer defend a client he or she
knows is guilty? Would you defend someone you knew was
guilty? Explain.

Judges and juries are essential parts of our legal system. The judge
presides over the trial and makes sure that attorneys follow the rules of
evidence and trial procedure. In jury trials, the judge instructs the jury as
to the law involved in the case and the jury determines the facts, includ-
ing whether the defendant in a criminal case is guilty or not guilty. Finally,
in criminal trials in most states, judges sentence individuals convicted of
committing crimes. In nonjury trials, the judge determines the facts of the
case and renders a judgment.
The Sixth Amendment to the U.S. Constitution guarantees the right
to trial by jury in criminal cases. This right applies in both federal and
state courts. The Seventh Amendment guarantees a right to trial by jury
in civil cases in federal courts. This right has not been extended to state
courts, but many state constitutions provide a right to jury trial in civil
cases. However, the fact that a constitution protects the right to trial by
jury does not mean that a jury is required in every case. Juries are not
used as often as one might think. In civil cases, either the plaintiff or the
defendant may request a jury trial. In criminal cases, the defendant
decides whether there will be a jury. Most civil cases result in out-of-
court settlements or trials by a judge. Most criminal cases are never
plea bargain in a criminal case, brought to trial. Instead a plea bargain, or pretrial agreement between
the negotiations between the the prosecutor and the defendant and his or her lawyer, disposes of the
prosecutor, defendant, and case without a trial.
defendant's attorney. In exchange
If a jury trial is requested, a jury is selected and charged with the task
for the defendant agreeing to plead
guilty, the prosecutor agrees to
of determining the facts and applying the law in a particular case. To
charge the defendant with a less serve on a jury, you must be a U.S. citizen, at least 18 years old, able to
serious crime, which usually results speak and understand English, and a resident of the state. As citizens we
in a lesser punishment have a duty to serve on juries when called upon. At one time, people
from certain occupations were exempt from jury service. These included
members of the clergy, attorneys, physicians, police officers, firefighters,
and persons unable to undertake juror tasks because of mental or phys-
ical disability. In some places, these persons are no longer excluded.
Convicted felons are usually ineligible for jury service unless their civil
rights have been restored. People who are not exempt and are called for
jury duty are sometimes excused if they can show “undue hardship or
extreme inconvenience.”
Jury service is an important civic duty that is necessary to preserve the
constitutional right to trial by jury. To determine who is called for jury

46 Introduction to Law and the Legal System

FYI For Your Information
Steps in a Trial
Step 1. Opening Statement by Plaintiff or Prosecutor
The plaintiff’s attorney (in civil cases) or the prosecutor (in
criminal cases) explains to the trier of fact (the judge or jury) the
evidence to be presented as proof of the allegations (unproven
statements) in the written papers filed with the court.
Step 2. Opening Statement by Defense
The defendant’s attorney explains evidence to be presented to
disprove the allegations made by the plaintiff or prosecutor.
Step 3. Direct Examination by Plaintiff or Prosecutor
Each witness for the plaintiff or prosecution is questioned. Other
evidence in favor of the plaintiff or prosecution is presented.
Step 4. Cross-Examination by Defense
The defense has the opportunity to question each witness.
Questioning is used to break down the story or to discredit the witness.
Step 5. Motions
If the prosecution’s or plaintiff’s basic case has not been
established from the evidence introduced, the judge can end the
case by granting a motion (oral request) made by the defendant’s
attorney. Also, both before and during a trial, attorneys for either
side may ask the judge for legal rulings that affect specific pieces
of evidence or even the entire case.
Step 6. Direct Examination by Defense
Each defense witness is questioned.
Step 7. Cross-Examination by Plaintiff or Prosecutor
Each defense witness is cross-examined.
Step 8. Closing Statement by Plaintiff or Prosecutor
The prosecutor or plaintiff’s attorney reviews all the evidence
presented and asks for a finding of guilty (in criminal cases) or a
finding for the plaintiff (in civil cases).
Step 9. Closing Statement by Defense
This is the same as the closing statement by the prosecution or
plaintiff. The defense asks for a finding of not guilty (in criminal
cases) or for a finding for, or in favor of, the defendant (in civil cases).
Step 10. Rebuttal Argument
The prosecutor or plaintiff may have the right to make additional
closing arguments that respond to points made by the defense in
its closing statement.
Step 11. Jury Instructions
The judge instructs the jury as to the law that applies in the case.
Step 12. Verdict
In most states, a unanimous decision by the jury is required for a
conviction in a criminal case. In civil cases some version of a major-
ity is needed. The exact requirement is determined by state law.

The Court System 47

 Attorneys for both the defense and
the prosecu­tion screen p
­ rospective
jurors through the process of voir dire
examination. Why might a
prospective juror be dismissed?

duty, the clerk of the court uses a list with names of registered voters,
licensed drivers, or some combination of the two. Usually a question-
naire is sent to potential jurors to determine whether they are eligible to
serve. Employers are required to let their employees take time off for jury
service. Most courts pay jurors a small daily stipend, and some courts
also provide a transportation fee. Some employers pay their employees
voir dire from the French phrase
meaning "to speak the truth." It is
during their jury service, but they are not required to do so. To reduce
the screening process in which the burden of jury service, many courts have instituted a one-day, one-
opposing lawyers question trial plan. Jurors must show up on the day they are called. A juror selected
prospective jurors to ensure as for a trial on that day must then return for the duration of the trial. If not
favorable or as fair a jury as selected, the juror will not be called again for some period of time, usu-
possible ally at least a year.
After they are selected, jurors are assigned to specific cases after being
removal for cause part of the jury
screened through a process known as voir dire examination. In this pro-
selection process. After voir dire,
opposing attorneys may request
cess, opposing lawyers question each prospective juror to discover any
removal of any juror who does not prejudices or preconceived opinions concerning the case. After question-
appear capable of rendering a fair ing each juror, the opposing attorneys may request the removal of any
and impartial verdict. juror who appears incapable of rendering a fair and impartial verdict.
This is called removal for cause. In addition, each attorney is allowed a
peremptory challenges part of limited number of peremptory challenges. This means the attorneys
the pretrial jury selection. Attorneys can have prospective jurors removed without ­stating a cause.
on opposing sides may dismiss a
Juries range in size from 6 to 12 persons, although all federal criminal
certain number of possible jurors
cases require 12-person juries. In the federal system and most state sys-
FogStock/Alamy

without giving any reason. There is

one exception: peremptory tems, conviction in a criminal case requires a unanimous verdict.
challenges cannot be used to However, about half of the state systems allow for nonunanimous v­ erdicts
discriminate based on race. in civil cases.

48 Introduction to Law and the Legal System

 PROBLEM 5.2
a. What reasons can you give for excluding from jury service
members of the clergy, attorneys, physicians, police officers, and
convicted felons? Should everyone be required to serve on juries?
Give your reasons.
b. If you were a defense attorney questioning jurors at the voir dire
in a murder trial, what questions would you ask potential jurors?
c. For what reasons might an attorney use a peremptory challenge?

Appeals Courts
In an appeals court, one party presents arguments asking the court to appeals court a court in which
review the decision of the trial court. The other party presents arguments appeals from trial-court decisions
supporting the decision of the trial court. There are no juries or witnesses, are heard
and no new evidence is presented. Only lawyers appear before the judges
to make legal arguments.
Not everyone who loses a trial can appeal. Usually, an appeal is possi-
ble only when there is a claim that the trial court has committed an error
of law. An error of law occurs when the judge makes a mistake as to the error of law a mistake made by a
law applicable in the case. For example, a judge might give the wrong judge in legal procedures or rulings
instructions to the jury or permit evidence that should not be allowed. A during a trial that may allow the
case to be appealed
judge’s error is considered minor as long as it does not affect the outcome
of the trial. In cases involving minor errors of law, the trial court decision
will not be reversed.
When an appeals court decides a case, it issues a written opinion or
ruling. This opinion sets a precedent for similar cases in the future. All precedent an appellate court
lower courts in the area where the decision was made must follow the decision on a legal question that
precedent set in the opinion. This is what is meant by courts “making guides future cases presenting a
law.” However, a higher court has the power to reverse or change the similar legal question
precedent. Courts in other parts of the country are not required to follow
the precedent. A court in another jurisdiction or state can disagree with
this precedent.
Typically, a panel of judges—or justices, as appellate judges are some-
times called—decides such cases. The panel may consist of three or more
judges. Nine justices hear cases argued before the Supreme Court of the
United States.
When these judges disagree on a decision, two or more written opin- dissenting opinion in an appeal,
ions may be issued in the same case. The majority opinion states the the written opinion of the minority
decision of the court. Judges who disagree with the majority opinion may of judges who disagree with the
issue a separate document called a ­dissenting opinion, which states the decision of the majority
­reasons for the disagreement. In some instances, judges who agree with
the ­majority’s outcome, but for reasons different from those used to sup- concurring opinion an additional
written court opinion in which a
port the majority opinion, may write a concurring opinion.
judge or judges agrees with the
Dissenting opinions are important because their reasoning may outcome reached by the court, but
become the basis of future majority opinions. As society and the views of for reasons different from those
judges on appellate courts change, so can legal opinion. An example is used to support the majority
the 1896 case of Plessy v. Ferguson, which upheld racial segregation in opinion

The Court System 49

THE CASE OF...
Taking a Car by Mistake intended to steal the car. Instead, the judge
instructed the jury that to find Harper guilty of auto
Joe Harper left the key in his 2018 blue sports theft, they had to decide only whether he was
utility vehicle (SUV) while he ran an errand. When caught driving a car that was not his. Using these
he came back an hour later, he got into someone guidelines, the jury found Joe Harper guilty.
else’s blue SUV by mistake. This case illustrates an error of law that could
This car also had the key in the ignition. Harper, be appealed. Auto theft law requires that the
who did not notice it was a different car, started it accused person must have intended to steal the
and drove away. He was arrested for auto theft as car. Because Harper did not intend to steal the car,
a result of his mistake. the guilty verdict would be reversed by an appel-
At the trial, the judge told the jury it was not late court.
necessary for them to consider whether Harper

Landmark Supreme railroad cars as long as facilities for whites and African Americans were
“separate but equal.”
Court Cases
U.S. Supreme Court Justice John Marshall Harlan dissented from the
Visit the Landmark majority opinion because it allowed a state to pass regulations based solely
Supreme Court Case on race, which he believed violated the U.S. Constitution. In the 1954
website at precedent-setting case of Brown v. Board of Education, some of the reason-
landmarkcases.org for ing expressed in Justice Harlan’s dissent in Plessy was accepted by the
information and activities Supreme Court, and the “separate but equal” doctrine was declared
about Plessy v. Ferguson unconstitutional.
and Brown v. Board of
Education
State and Federal Court Systems
Figure 5.1 illustrates the two separate court systems in the United
States—state and federal. State courts are courts of general jurisdiction.
They can hear cases that deal with state law as well as many areas of fed-
eral law. The federal courts are courts of limited jurisdiction. Their power
is limited to deciding certain types of cases. Federal courts hear criminal
and civil cases involving federal law, including the Constitution. They also
hear some civil cases involving parties from different states when the
amount in dispute is more than $75,000. Federal trial courts are known as
U.S. District Courts. If you lose a trial in the U.S. District Court, you may
be able to appeal to the U.S. Circuit Court of Appeals in your region. The
United States has 94 district courts and 13 circuit courts. The court of final
appeal is the Supreme Court of the United States.

State Courts
Most state court systems resemble the federal court system in both
structure and procedure. All states have trial courts. These are called
superior, county, district, or municipal courts, depending on the state.

50 Introduction to Law and the Legal System

 State trial courts are often specialized to deal with specific types of Investigating the Law
legal issues. Examples include family, traffic, criminal, probate, and small
claims courts.
Where You Live
Family or domestic relations courts hear actions involving divorce, Find out what courts
separation, and child custody. Cases involving juveniles and intrafamily exist in your commu-
offenses (fights within families) may also be heard. Cases involving juve- nity. What kinds of
niles are usually heard in a special juvenile court. Traffic courts hear cases do they handle?
actions involving violations committed by persons driving motor vehicles. How are the appeals
Criminal courts hear cases involving violations of law for which the viola- handled in your state?
tors could be punished. Frequently, criminal court is divided between What is the highest
felony and misdemeanor cases. Probate courts handle cases involving court in your state?
wills and claims against the estates of persons who die with or without a Where is it located?
will. Small claims courts hear cases involving small amounts of money Search online to find a
(maximums of up to $10,000, or more, depending on the state). Individuals diagram of your state's
court system.
may bring cases to small claims court without lawyers, though it is some-
times advised that lawyers be present. Filing procedures are easy, and the
court fees are low.

FIGURE

5.1 Federal and State Court Systems

U.S. Supreme Court

Appeals Appeals

U.S. Circuit Court of Appeals State Supreme Court (Highest State Court)

Appeals

Appeals Intermediate Court of Appeals

Appeals

U.S. District Court (Federal Trials) Municipal or County Court (Local Trials)

FEDERAL CASES STATE CASES

The U.S. judiciary consists of parallel systems of federal and state courts. Analyze the Data How are the systems the same?
How are they different?

C05-01A-879983 The Court System 51

ac
probate the process of proving If you lose your case in the trial court, you may be able to appeal to
to a court that a will is genuine; an intermediate court of appeals or, in some states, directly to the state’s
distributing property according to highest court. If a state supreme court decision involves only state law,
the terms of a will
it can be appealed no further. Each state’s highest court has the final say
on interpretation of state laws and the state constitution. If a state
supreme court decision involves federal law or a federal constitutional
issue, it may be possible for the losing party to appeal to the U.S.
Supreme Court.

Federal Courts
Article III of the U.S. Constitution creates a Supreme Court and gives
Congress the power to create lower courts. Congress has divided the
Investigating the Law United States into 94 federal judicial districts, with a district court
Where You Live known as a federal trial court in each district. The district courts handle
Research to learn a variety of federal criminal and civil cases. Each district court has at
more about the federal least one judge and some have more than 20. There are also federal
judicial district in which bankruptcy and tax courts that only handle certain kinds of cases. As
you live. Which federal the map in Figure 5.2 on the next page shows, some federal judicial
court of appeals districts cover an entire state, while other states have several districts
handles appeals from within their boundaries.
your local federal trial Congress placed the 94 districts in 12 regional circuits, each of which
court? Learn more at has a court of appeals. Court of appeals judges handle appeals of trial
www.uscourts.gov. court decisions to determine whether district court judges applied the
law correctly. Most courts of appeal have between 10 and 15 judges.
However the largest court of appeals (for the Ninth Circuit, which
includes California) has more than 40 judges. There is also a U.S. Court
of Appeals for the Federal Circuit. This court, which meets in Washington,
D.C., hears appeals from federal trial courts from all over the country.
However, it only hears cases dealing with certain legal topics—primarily
international trade, patent law, certain money claims against the federal
government, and veterans issues. In creating the U.S. Court of Appeals
for the Federal Circuit, Congress believed that its judges would develop
special expertise in these complex cases.
Overall, the federal courts handle more than 400,000 cases per year.
The federal courts also handle more than 1,000,000 bankruptcy petitions
each year. All together, the state court systems handle more than 100
million cases per year. About 1,700 federal judges decide the former mat-
ters, and about 30,000 state court judges decide the latter. Federal court
judges are appointed by the president and confirmed by the Senate. The
U.S. Constitution protects the independence of these judges by provid-
ing that they hold office “during good behavior.” For the most part, fed-
eral judges serve until they resign, retire, or die. Removal of federal
judges requires that Congress follow formal impeachment procedures.

52 Introduction to Law and the Legal System

PROBLEM 5.3
For each case, decide whether it will be tried in a federal or state
court. To what court could each case be appealed? Explain. Then give
an example, different from those listed, of a case that could be heard
in a state court and a case that could be heard in a federal court.
a. A state sues a neighboring state for dumping waste in a river that
borders both states.
b. A wife sues her husband for divorce.
c. A person is prosecuted for assaulting a neighbor.
d. Two drivers from the same state crash their cars into each other.
One driver sues the other for medical bills and car repairs.
e. A woman who has patented an invention sues another person
later claiming to have invented the same item.

FIGURE

5.2 The Federal Judicial Circuits

WA
Western
Eastern
ME
MT ND 1
OR MN Western VT
Western
2 NH
ID SD NY MA
WI MI Northern
WY 8 Eastern Eastern Western CT RI
Northern Middle Eastern
Northern

Eastern Western
IA WesternPA Southern
9 NE Northern
Northern Northern 3 NJ
NV Southern 6 Eastern
UT
IL 7 IN OH
Southern Northern
DE
CA Central Southern WV VA MD
CO DC
10 KS MO Southern
Southern
Eastern 4
Eastern
Eastern KY Western D.C. Circuit
Western Western Middle Washington, D.C.
Central Northern Middle EasternWestern NC
OK Western Western Eastern
AZ Western AR TN
Southern NM Eastern
Eastern Northern
Northern SC Federal Circuit
Washington, D.C.
Northern AL
Northern MS GA
Middle
Eastern Western SouthernSouthern Middle
11
Southern

TX N
5 LA Northern
HI
Northern
9 Western FL W E
Mariana Middle Middle
Islands 9 Southern
Eastern S
Southern
Guam AK 3 Virgin
Islands
Puerto Rico 1
LEGEND
Circuit boundaries District boundaries
State boundaries
Note: The D.C. and Federal Circuits are not numbered.

Congress created district courts to serve as trial courts for federal cases. Analyze the Data Which ­federal judicial circuit
hears cases from the state where you live?

C05-02A-879983
ac
The Court System 53
YOU BE
the
JUDGE
Independent Courts benefit of an executive branch that will enforce
court orders if necessary.
A key element of a democracy is that courts In some countries, judges and courts are not
must act impartially and make fair decisions without independent. They are influenced or in some cases
undue influence by outside forces. controlled by the legislature or the president.
One method of trying to ensure an independent Read each of the following situations carefully.
judiciary is to appoint judges for a life term. This is For each one, determine whether the actions vio-
done in the federal system and in a few states. late judicial independence. Explain your reasons
Federal judges are nominated by the president and
a. Marsha Monroe is running for election to be a
confirmed by the Senate. Judges who are
judge on her state’s supreme court. She visits
appointed for a life term can make decisions in
the offices of George Sanchez, the president
cases without being concerned about how it might
of a large corporation, and asks for a dona-
affect their reelection.
tion of $1,000 to help in her campaign.
In most state courts, judges are elected. Some
believe that the need to raise funds for elections b. Some U.S. senators are unhappy about deci-
can result in a judge’s being biased when deciding sions of some federal judges. When the bud-
a particular case. Others believe that a system of get for the federal judiciary comes before
electing judges ensures accountability and is Congress, these senators propose a reduc-
appropriate in a democracy. tion in salary for federal judges.
Another method of trying to preserve the inde- c. Judge Max Kaufman presides over a case
pendence of judges is known as merit selection. involving a corporation. A distant cousin of his
Using this approach, a judicial commission made up is employed by that corporation and is a wit-
of lawyers, judges, and sometimes laypeople either ness for the corporation at the trial. Judge
decides who will be a judge or sends names of Kaufman rules for the corporation.
qualified candidates to the governor, who then d. Judge Maureen Kim is running for reelection
chooses judges from that list. and knows that crime is a big issue with the
In addition to issues of judicial selection and voters in her state. In the months just before
retention, independent courts must have fair the election, she hands down some unusually
­procedures, the power of judicial review, and the long sentences for drug offenses.

Aaron Roeth Photography

54 Introduction to Law and the Legal System

 Native American groups govern
their own people. Why do tribal court
systems exist?

Tribal Courts
Many people, especially those who live in states with small Native
American populations, do not realize that several hundred Indian tribal
groups operate as semi-autonomous nations within the United States.
These “domestic dependent nations,” as the U.S. government refers to
them, retain certain legal authority over their respective reservations.
Sometimes these tribal powers are called inherent powers. These pow-
ers include the power to regulate family relationships, tribal membership,
and law and order among tribal members on the reservation. Occasionally
Congress grants power, such as environmental regulation, to a tribal
group. This is called a delegated power. Most Native American groups
have justice systems, often called tribal court systems. Tribal courts hear
a broad range of both criminal and civil cases involving both Native
Americans and non-Native Americans. The jurisdiction of tribal courts
varies based on such factors as the location of the offense (on or off the
reservation) and the status (Native American or non-Native American) of
the defendant and plaintiff.

Military Courts
In many ways, the military acts as another domestic dependent nation
of the United States. It has its own set of laws, written by Congress and
known as the Uniform Code of Military Justice (UCMJ), and its own sys-
tem of courts. Of course, the military courts ultimately must abide by the
Constitution and by the rulings of the Supreme Court. Military courts are
most often called courts-martial and are convened to try U.S. military
members who have violated the UCMJ.
Military courts may also be used during wartime to try enemy combat-
©Luc Novovitch/Alamy

ants. The more famous of these tribunals was the Nuremberg trials, held
after World War II to prosecute members of Nazi Germany for war crimes.
Most recently, military tribunals have been established in Guantanamo
Bay, Cuba, to prosecute detainees captured during the War on Terror.
These tribunals have been the subject of several Supreme Court cases and

The Court System 55

THE CASE OF...
Gideon v. Wainwright had to be provided to an indigent defendant in a
felony case. One powerful argument against
In 1963, a case called Gideon v. Wainwright Gideon was that the Supreme Court should not be
came before the U.S. Supreme Court. In this case, telling the states how to administer their criminal
a Florida man named Clarence Gideon was justice systems. However, the Supreme Court
charged with unlawful breaking into and entering a agreed with Gideon.
poolroom. Gideon asked the trial court to provide
him with a free lawyer because he was too poor to
hire one himself. The state court refused to pro- PROBLEM 5.4
vide him with an attorney. It said that state law
provided free attorneys only to poor defendants a. W hat precedent did the Supreme Court set
charged with capital offenses (those crimes that with its ruling in Gideon v. Wainwright? Who
carry a ­penalty of death or life imprisonment). has to follow this precedent?
The Fourteenth Amendment to the U.S. b. Who would have had to follow the precedent
Constitution says that no state may deprive a per- if the case had been decided by a judge in a
son of life, liberty, or property without due process state supreme court?
of law. Due process means fair treatment. Gideon
c. Does the Gideon precedent apply if you are
argued that to try someone for a felony without
charged with a misdemeanor? Does it apply
providing him or her with a lawyer violated the per-
if you are sued in a civil case?
son’s right to due process of law. State courts had
been split on the question of whether a free attorney

due process the idea stated in the there is still a great deal of controversy surrounding the tribunals and the
Fifth and Fourteenth Amendments due process afforded to the detainees.
that every person is entitled to fair
treatment by the government. The
requirements of due process vary The Supreme Court of the
with the situation, but they require
at a minimum notice and an United States
opportunity to be heard.
The most important legal precedents are established by the U.S.
Supreme Court, where nine justices hear each case and a majority rules.
All state and federal courts in the United States must follow U.S. Supreme
Landmark Supreme Court precedents. Some of these precedents, such as Brown v. Board of
Education, which ended state-sponsored segregation in public education,
Court Cases are fairly well known by the public. Surveys show, however, that the pub-
Visit the Landmark lic has little understanding of how the Court operates.
Supreme Court Cases The Supreme Court does not accept most of the cases it is asked to
­website at hear. Each year, the Court is asked to hear more than 7,000 cases. The
landmarkcases.org for parties who lost their case in a lower court file a petition for ­certiorari—a
information and activities request for the lower court to send up its ruling—asking the Court to
about Gideon v. hear their case. More than 99 percent of these requests are denied. The
Wainwright. justices typically hear oral arguments and issue written opinions in
fewer than 80 cases each year.
With few exceptions (such as federal voting rights cases), the Court
does not have to hear a case it is asked to hear. With so many cases to

56 Introduction to Law and the Legal System

 choose from, it is able to set its own agenda. Most often petitions for cer- petition for certiorari Certiorari is
tiorari are granted when lower courts have decided the same issue differ- a Latin word meaning "to be
ently because the Court sees its role as making laws uniform across the informed of." It is a formal
application by a party to have a
country. The Court also takes cases that it believes deal with critical
lower-court decision reviewed by
national issues. More than half of the petitions each year come from peo- the U.S. Supreme Court, which has
ple who cannot afford to pay the $300 filing fee. Usually, these petitioners discretion to approve or deny any
are incarcerated. such application.
The party who petitions to the Supreme Court is generally the losing
party in an appellate case that was argued in a federal circuit court of
appeals or a state supreme court. This party’s first step is to request in
writing that the Court hear the case. The written legal briefs, or legal argu-
ments, initially submitted to the Court emphasize why the case should be
heard rather than how it should be decided. The party who has won the
case in the lower court may submit a brief arguing why the case should not
be heard. If the party appealing gets four of the nine justices to agree to
hear the case, then the petition for certiorari is granted. This is the one
exception to majority rule at the Court.
If the Court decides to hear the case, the parties then write briefs argu-
In 2019, the U.S. Supreme Court
ing how the case should be decided, and an oral argument is scheduled included (first row, L-R) Associate
with the Court. During this hour-long argument, which is open to the Justice Stephen G. Breyer, Associate
public, each side usually has 30 minutes to present its case to the justices. Justice Clarence Thomas, Chief
The justices, who have already read the briefs and studied the case, ask Justice John G. Roberts, Jr., Associate
many questions of the lawyers. After the case has been argued, the jus- Justice Ruth Bader Ginsburg,
tices meet in a private conference to discuss the case, and the process of Associate Justice Samuel A. Alito.
Back row: Associate Justice Neil M.
drafting an opinion begins. While the media tend to emphasize the dis-
Gorsuch, Associate Justice Sonia
agreements among the justices, in a typical term the Court decides more Sotomayor, Associate Justice Elena
cases 9 to 0 than 5 to 4. Kagan, Associate Justice Brett M.
The federal government participates in a significant number of the Kavanaugh. How does the Court
cases before the Court. Sometimes the U.S. government is a party to the determine which cases it will hear?
Fred Schilling, Collection of the Supreme Court of the United States

The Court System 57

 case. More often, it offers its views to the Court as an amicus curiae, or
“friend of the Court,” with an interest in the case. The Office of the
Solicitor General of the United States represents the federal government
in the Supreme Court.
When a party files a petition for certiorari and the solicitor general’s
office also asks the Court to take the case, the Court is much more likely to
grant review. In these cases a lawyer from the solicitor general’s office may
also participate in the oral argument, presenting the federal government’s
views—and answering the justices’ questions—during 10 of the 30 minutes
allotted to the party whose side the government supports.
The Court’s term begins on the first Monday of each October, and
final decisions on cases argued during that term are handed down by the
end of June of the following year. In a typical year, about 80 percent of
the cases the Court hears come from the federal courts, and 20 percent
from state courts. In more than half of the cases argued before the Court,
the lower court opinion is reversed.
The nine U.S. Supreme Court justices are nominated by the president
and confirmed by the Senate. They have the authority to interpret the
meaning of the U.S. Constitution and federal laws. All lower courts must
follow these interpretations and other rules of law established by the
Supreme Court. The Court’s opinions are released electronically the
same day they are issued. Later they are published in law books.
In recent years, many of society’s most controversial issues have been
heard by the Court. These include the death penalty, freedom of speech,
gun control, abortion, and civil rights. Because these issues are so signif-
icant and because justices are appointed for life, the views of persons
nominated to become justices have become very important.
Some individuals criticize the practice of appointing justices on the
basis of their personal or political viewpoints. These critics say appoin-
tees should be above politics because they sit for life and the Court makes
its decisions in private. They say that other criteria should be used to
select justices, such as demonstrated experience and expertise as a law-
yer or a judge, as well as intelligence, integrity, and good moral character.
Others say that the process—presidential nomination and Senate confir-
mation—is inherently political and that it is impossible to be above poli-
tics when it comes to judicial nominations to the Court.
As noted, all lower courts in the United States must follow legal prec-
edent established by the Supreme Court. The rule that precedent must
stare decisis the rule stating that be followed is called stare decisis. This Latin phrase literally means “to
precedent must be followed, stand by that which is decided.” Following precedent gives the legal sys-
providing the legal system with tem predictability and stability. While the Court usually follows its prec-
predictability and stability edents, it has the power to overturn a rule of law established in a prior
case. This action sometimes occurs when society’s prevailing views
change and the justices want the law to reflect these changes. It may also
occur when one or more justices who voted a certain way in an earlier
case leaves the Court, and new justices are appointed who disagree with
the prior decision. If this happens, the justices may overrule the existing
precedent. When the Court decided Brown v. Board of Education in 1954,
it voted to overturn the “separate but equal” rule it had established more
than 50 years earlier in Plessy v. Ferguson.

58 Introduction to Law and the Legal System

 TAKING ACTION: Law and Democracy
Who Should Be on the
Supreme Court?
The president of the United States selects nomi-
nees for all federal judgeships, including the U.S.
Supreme Court justices, “with the advice and
consent of the Senate.” The Senate must
approve all nominees before they are appointed.
Once appointed, justices serve for life unless
they resign or are impeached. When the Senate
receives a nomination from the president, it
sends the nomination to the Senate Judiciary
Committee for consideration. The committee
schedules a hearing on the nomination. After the
hearing, the committee votes. If a majority votes
in favor of the nominee, the nomination is sent to
the full Senate for consideration. If the majority
of the Senate also votes for the nominee, the U.S. Supreme Court building
nominee is confirmed.
Photographs in the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division [LC-DIG-highsm-13879].

PROBLEM 5.5
a. You are legal counsel to the president. One • respected trial court judge
of the Supreme Court justices has just • friend of the president
announced his resignation. Many groups
• believes that affirmative action is
and individuals are suggesting names of
unconstitutional
people they think should be nominated by
the president. Write a memo to the presi- • believes in a woman’s right to an
dent describing the type of person who abortion
should be nominated to the U.S. Supreme • lives in California (assume there are no
Court. current justices from the West Coast)
b. As legal counsel to the president, look at c. Assume you are a member of the Senate
the following characteristics of potential Judiciary Committee. A nominee for the
Supreme Court nominees. Rank them from Supreme Court has an excellent reputation
most important to least important. Be pre- as a lawyer and lower court judge but is
pared to give your reasons. likely to vote, if confirmed, to overturn the
• 45 years old case that established a woman’s right to
choose an abortion. Voters in your state
• Asian American (assume there are no
tend to support the right to choose. How
Asian Americans on the Court)
would you vote on the nominee?
• female
• graduated first in class from a top law
school

The Court System 59

 International Courts
A number of international courts have been set up by the United
Nations (UN) and other international organizations to apply and enforce
international law. The International Court of Justice (ICJ), the principal
judicial organ of the UN, is located at The Hague in the Netherlands. This
court may settle any dispute based on international law that a country
submits to it. Both countries involved must agree to have the ICJ settle
the ­dispute.
The International Criminal Court, created by the UN in 1998, began
operating in 2003. This court has jurisdiction to try individuals for
crimes such as genocide, crimes against humanity, war crimes, and
crimes of aggression. Initially, more than 80 UN member countries rat-
ified the treaty setting up the International Criminal Court, but the
United States opposed ratification. Opposition in this country is based
on the belief that this court might put American citizens, including U.S.
military personnel, on trial for political reasons. For example, a member
of the U.S. military might be tried because some countries oppose U.S.
military policy in some part of the world. Other international courts
The International Court of Justice,
also known as the World Court, is
include the International Court of Justice, the Inter-American Court of
located in the Peace Palace in The Human Rights, the African Court of Human and People's Rights, and
Hague, the Netherlands. What kind of the European Court of Human Rights.
disputes does the International Court
of Justice settle?

UygarSirin/Getty Images

60 Introduction to Law and the Legal System

 CHAPTER 6
Lawyers

The sixteenth president of the

United States, Abraham Lincoln
was also a lawyer.

There are more than 1.3 million lawyers, also referred to as attorneys, in
the United States. More than 70 percent of them are in private practice.
Around 10 percent are government lawyers who work for federal, state,
or local agencies. Another 10 percent work for corporations, unions, or
trade associations. A small number of lawyers work for public interest or
legal aid organizations. An even smaller number are law professors,
judges, or elected officials.
Contrary to popular belief, most lawyers rarely go to court. Most law
practice involves giving advice, drafting legal opinions, negotiating
settlements, or otherwise providing out-of-court legal assistance.
Some lawyers do, however, go to court. They are called trial attorneys
litigator a trial attorney; or litigators. In civil cases, lawyers act as advocates for their clients’
a barrister positions. Likewise, in a criminal case, the lawyer for the defendant has
a duty to do everything possible—without violating a code of professional
ethics—to secure the release and acquittal of his or her client.

When Do You Need a Lawyer?

It is important to know when to see a lawyer. Many people think of
seeing an attorney only after they get into trouble, but perhaps the best
time to consult an attorney is before the problem arises. Preventive
advice is an important service that lawyers provide. If you are under 18
and not legally emancipated, you will need a parent or another represen-
David Planchet

tative known as a “next friend” to use most of the services that lawyers
provide.

61
 You should consider consulting an attorney about a number of com-
mon situations. These include:
• buying or selling a home or other real estate,
• organizing a business,
• changing your family status (for example, by divorce or adoption),
• making a will or planning an estate,
• handling accidents involving significant personal injury or property damage,
• signing a large or important contract, and
• defending a criminal charge or bringing a civil suit.
If a question of law is involved, a legal document needs to be drawn up
or analyzed, or you are involved in a court case, you will probably need
legal help. However, if your problem is minor, you may be able to handle
it on your own or with the help of someone other than a lawyer. For exam-
ple, you can usually sue someone in a small claims court without a lawyer.
Likewise, an argument with a spouse may be better handled through a
marriage counselor or mediator. Relatives, friends, teachers, members of
the clergy, doctors, or accountants may be more appropriate sources of
bar associations an organization
advice in certain situations.
that licenses lawyers in some states
If you are not sure whether you need a lawyer, it may be advisable to
see one to help you decide. Many bar associations—organizations that
Involvement in a car accident may
require you to seek the advice of
license lawyers—and other groups have services to help you decide if you
a lawyer. How would a lawyer’s need a lawyer. These are often provided free of charge or for a small fee.
services help someone involved
in a car accident?

©Tom Merton/age fotostock

 PROBLEM 6.1
For each of the following situations, discuss the reasons you may or
may not need an attorney.
a. You hit another car in a parking lot. Your insurance agent indicates
that the company will pay for bodily injury and property damage.
b. You borrow a friend’s car without his knowledge, and he reports it
to the police as stolen.
c. You buy a new laptop for $800. One month later, the laptop stops
working. You return to the store, and the salesperson tells you he is
sorry but these laptops have only a two-week guarantee.
d. You decide to trade in your old car and buy a new one.
e. Two friends are caught robbing the cashier at a local store, and they
name you as someone who helped plan the robbery.
f. You are turned down when you apply for a job. You think you were
rejected because you are deaf.
g. You do not want your family to inherit the $10,000 you have saved.
After being told you will die within a year, you want the money to be
used for cancer research.
h. You and your spouse can no longer get along. You want a divorce.
i. You earn $5,000 working in a restaurant during the year. You want
to file your federal income tax return.

How Do You Find a Lawyer?

If you need a lawyer, how do you find one who is right for you and Investigating the Law
your particular problem? Perhaps the best way to find an experienced Where You Live
lawyer is through the recommendation of someone who had a similar
legal problem that was resolved to his or her satisfaction. You might also Find out the contact
ask your employer, members of the clergy, businesspeople, or other pro- information for the bar
fessionals for the name of a lawyer they know and trust. association in your
Probably the best way to find a lawyer is through the recommendation state. Does it provide a
of a friend who used a lawyer for a similar problem and felt well lawyer referral service?
represented. In addition, the Martindale-Hubbell Law Directory, available
in your public library and online, lists most lawyers in the United States
and provides general information about education and professional
experience of each lawyer. Lawyers sometimes advertise their services.
In many places, advertisements for lawyers appear in newspapers and
magazines or on radio and television. In addition, a variety of websites
also provide referrals to lawyers.
Lawyers have not always been allowed to advertise. For years, it was
considered improper and was forbidden by bar associations and courts.
In 1977, the Supreme Court ruled that advertising by lawyers was pro-
tected by the First Amendment’s freedom of speech clause.

Lawyers 63
 Lawyers specializing in certain
legal services, such as bankruptcy
and personal injury, often a­ dvertise
on large b
­ illboards. What is the best
way to find an e ­ xperienced lawyer?

Those in favor of allowing lawyers to advertise think that it helps

consumers decide which lawyer to hire. They add that statistics show
advertising lowers legal fees through competition. Those against adver-
tising by lawyers think that it encourages lawyers to be salespersons
who are likely to make exaggerated claims. They think that lawyers
should be hired based on competence and skill, qualities difficult to
ascertain through advertising.
Many lawyers now advertise through various means, including on
billboards, buses, radio, and television. But the trend is clearly toward
online, digitally-driven advertising. Advertising has enabled large,
lower-cost law firms, often called legal clinics, to develop, and some have
spread nationwide. However, many attorneys and others still consider
advertising improper.
In fact, lawyer advertising is a relatively new phenomenon. It began in
1977 when the Supreme Court struck down restrictions on lawyer adver-
tising in Arizona in the case of Bates v. State Bar of Arizona.

PROBLEM 6.2

(bkgd)nicholas belton/Getty Images, (inset)Purestock/SuperStock

Conduct an online search for ads from lawyers and law firms. Enter
the phrase “find a family lawyer near me.” Analyze three advertisements.
What are some advantages of lawyer advertising? What are some
disadvantages of lawyer advertising?

64 Introduction to Law and the Legal System

 Becoming a Lawyer
Some students in high school law classes are interested—or become
interested—in becoming a lawyer. The path to becoming a lawyer in the
United States usually involves completing a four-year college program,
demonstrating strong academic skills, taking the Law School Admission
Test (LSAT), completing law school (usually a three-year program) and
passing a state-administered bar examination. The rules for eligibility to
take the bar exam and to qualify for bar admission are set by each state.
However, to receive a license to practice law, one must be a graduate of
a law school that meets certain standards, and one must achieve a pass-
ing score on the bar examination. In addition, states check the character
and fitness of each person who applies for a license to practice law.
In 2018 more than 100,000 students were enrolled in law school.
More than 30,000 students graduate from law school each year and,
typically, between 60 and 70 percent of those graduates pass a bar exam.
Pass rates vary from state to state and even from year to year. In 2016
women outnumbered men for the first time in law school classrooms.
The number of students of color enrolled in law schools has increased
somewhat over time, but lawyers of color are significantly underrepre-
sented in the legal profession. Many organizations work to increase
diversity in the legal profession.
The Law School Admission Test is administered by the Law School
Admission Council (LSAC). LSAC provides a great deal of information
for students interested in applying to law school (www.lsac.org). LSAC
also sponsors dozens of programs and events each year to encourage
students from communities that are underrepresented in the legal pro-
fession to consider law as a career.

PROBLEM 6.3
a. What job opportunities are available to persons who graduate from
law school and pass the bar exam?
b. What are some of the obstacles to becoming a lawyer and how can
these obstacles be overcome?

Becoming a lawyer in the United

States involves earning a four-year
college degree, taking the LSAT, and
completing law school.
Solis Images/Shutterstock

Lawyers 65