The American Legal System (Susan Buck)

 law--the command of the sovereign backed by a sanction.

 Environmental managers/regulators can use the following to achieve compliance:

--sanctions

--persuasion

--political pressure

--incentives

 Sources of Law

  1. The Common Law--based on the idea of precedence, that like cases are decided alike. Judicial decisions based not only on the applicable statute, but also how other courts have interpreted the statute. Often referred to as "judge-made" law.

    2.   --developed in the 13th century--royal judges began to record decisions and reasoning

    --American legal system was based upon the English one

      Martin v. Wadell (1842)--early public trust doctrine case--case where courts articulated the continuance of English traditions

      ***theory behind common law interpretation--judges determine the facts and then, finding previous cases with similar facts, reason from analogy to reach their conclusions

     

  2. Statutes and Ordinances--formal acts of legislation passed by Congress or the state legislature (and country and city governments)

--can be very specific or general

--often general, why?

--legislators lack time/expertise to hammer out details

--legislative process is slow and cumbersome

--decisions are necessarily compromises

--controversy can be deflected to a lower level

3. Rules and Regulations--requirements established by administrative agencies, delegated by lawmakers

--rules must meet two constitutional standards:

--procedural due process--did the agency follow the legal requirements of notice and hearing

--substantive due process--is the agency operating within its designated policy boundaries

--rules and regulations properly formulated and is within statutory authority of an agency has the same status as any piece of legislation passed by legislature and signed
  1. Constitution--document that outlines how broad powers are to vested ( and separated)…contains procedures for amendment as well as bill of rights.

  --zoning may be viewed as a "taking" of an individual's property (Amendment V)

--legitimacy of rulemaking--is Congress unconstitutionally delegating legislative responsibility?

Judicial Decision Making

  judges interpret 1) relevant statutes and regulations 2) follow common law precedents, and apply constitutional principles

statutory interpretation--how to do this?

--examine legislative history (in Congress, Conference Report)

--testimony is often conflicting

--debates are real and people change minds--won't be reflected in the record

--Congressional Record may be substantially edited by members

--examine contemporary administrative interpretations

--nonlegislative changes (e.g., technology) will also be considered by the court (internet and free speech is a good example)

--courts examine past judicial opinions to search out reasoning of other courts

 Applying Constitutional Principles

  --judges must consider plain language itself (strict construction vs. interpretation)

--most judges agree that Constitution is a "living document"

 Federalism

  --intergovernmental system of local, state and national government

--"powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people"

--national level has been increasing in power for last century

--presidents have campaigned for strong national government

--widespread disillusionment with state governments

--national crises beyond abilities of single government entities

--some environmental policies set at state level

--e.g., wildlife management

--federal agencies rely on states to enforce environmental regulations

--many environmental issues cross political boundaries

--special interest groups find influence increased through federalism because there are multiple points of access