A Guide for The Legally Perplexed

I realized that in previous posts, I’ve used a lot of legal jargon and terminology with which our readers may not be familiar. Law is a very different thing than science, with its own language and ways of thinking; so I thought it might be helpful to post a “Guide for the Legally Perplexed.”

This is divided into three parts. Part I is the basic Constitutional structure. Part II is the court system. Part III covers some terminology and the methods of legal analysis.

I. Basic Constitutional structure

The United States Constitution gives a limited number of specified powers to the federal government. Most of these powers are found in Article I, section 8, but there are others elsewhere, including in the Amendments. For example, the Fourteenth Amendment gives Congress the power to enforce the equal protection clause by appropriate legislation. For the most part the Constitution only governs the federal government, but it does contain some limits on what states can do, and it is the “supreme law of the land,” meaning that in a conflict between state and federal authority, the feds will usually win. The federal government has no authority except as specifically enumerated in the Constitution, or powers which are “necessary and proper”</b> to carrying out those things which are specifically enumerated. In theory, that isn’t much; in practice, it’s a lot.

States, however, are different. They have to obey the federal constitution, but they have a lot more power. They have what’s called the “police power,” which is a not-very-clearly-defined region of power to protect public health, safety, and welfare. Schools, welfare systems, police, these things are handled by states, and are entirely up to the states, unless they are done in a way that violates the federal Constitution. If the state legislature passes a law requiring you to hop on one foot five times every Thursday morning, the federal government can’t really do anything about that unless it violates something in the federal Constitution–maybe the due process clause.

The Bill of Rights was originally applicable only to the federal government. But in the wake of the Civil War, the Fourteenth Amendment was added to the Constitution, and it prohibits states from depriving you of “privileges or immunities,” or depriving you of life, liberty, or property without “due process of law,” or from depriving you of the “equal protection of the laws.” The Fourteenth Amendment is very important because it changes the federal structure a lot from the way it was originally designed in the 18th century. Now you can go to federal court for relief when the state violates your rights.

At the same time that the Fourteenth Amendment was passed, Congress enacted the Civil Rights Act, which is now called 42 U.S.C. §1983. (That is, title 42 of the United States Code, section 1983). There are other Civil Rights Acts, but this is the most important one, because it says that when a state officer deprives you of a federal civil right, while acting under “color of state law” you can take him to a federal court. Now, the problem with that was that the states have “sovereign immunity.” That means, you can’t sue the state without the state’s permission. So can you use 42 U.S.C. §1983 to sue the state for depriving you of your federal civil rights? The answer is no. What you have to do is sue the particular state officers, in their “official capacities,” for deprived you of your rights–and you can’t sue them for money, only for an injunction, which is a court order telling them not to do it again.

What sort of rights are protected by the Fourteenth Amendment or by 42 U.S.C. §1983? Well, there’s a lot of debate about that. What it boils down to is this: the “due process” clause of the Amendment makes the Bill of Rights (which, remember, only applied to the feds in the past) applicable also to the states. So when you read “Congress shall make no law. . .” in the Bill of Rights, the Fourteenth Amendment transforms that into “States shall make no law. . .” There are some real problems with this notion–which is called “incorporation.” For more information, I strongly recommend Akhil Reed Amar’s book The Bill of Rights. But this is the way the law stands. Most of the Bill of Rights has been “incorporated” against the states. (Not the Second Amendment, or portions of the Seventh and Eighth Amendment, or the Ninth or Tenth Amendments, where incorporation wouldn’t really make sense.)

Suppose that you’re a student in a state high school in the 1960s, and you oppose the Vietnam War, and you wear a black armband with a peace symbol to school one day, to express your opposition. The principal orders you to remove the armband, because he doesn’t want to hear your opinions. Now, he works for the state–he’s the principal, and an employee of the state. You have the right to freedom of speech, which is enumerated in the First Amendment. That right is incorporated to the state through the Fourteenth Amendment. So when he tells you to take your armband off, you’re being deprived of liberty without due process of law. You would file a lawsuit under 42 U.S.C. §1983, demanding an injunction against the principal and the school, ordering him not to tell you to remove your armband. He, of course, would say that as a high school student, you have no free speech rights. The could would have to decide whether or not you do. That case, of course, was Tinker v. Des Moines School District,</i> 393 U.S. 503 (1969), and the students won.

(By the way, those numbers tell you where to look up the case. It’s volume 393 of the “United States Reports,”–which is a set of books containing all the Supreme Court decisions–page 503. This is a very old system of citation which isn’t as accurate as scientific citation systems, but lawyers keep it because it’s old. You can go to a case from two hundred years ago and find a cite to, say, 5 Co. Rep. 43, and you know that means volume 5 of Coke’s Reports, page 43.)

Which court, though, would you go to with your black armband case? That leads us to Part II.

II. The Court systems

There are state and federal courts. Federal courts are divided into three levels: the trial courts, which are called “District Courts”; the appellate courts, where you go if you lose your trial–these are called the “Circuit Courts of Appeals”; and then, of course, the Supreme Court, where you go if you lose in the Court of Appeals. There are other federal courts, that handle specialized things, and there are some cases where you can go directly to the Supreme Court and all that, but for the most part, this is how it works in the federal system.

State courts are organized however the state decides. (Of course, the state can’t set up a system that violates the federal constitution, but that still gives them a wide range of options.) Here in California, we have trial courts, called “Superior Courts”; then appellate courts, called “District Courts of Appeal”; and then the Supreme Court. (And we have some special courts that handle specific things, too, like the Small Claims Courts.) These can get kind of confusing, since our appellate court is called a “District Court,” while the federal trial court is called the “District Court.” It’s even worse in New York, where the “Supreme Court” is actually the lowest level of courts!

So to return to the armband hypothetical. I’m in a high school in, say, Sacramento, which is near where I actually live. I could go to state court if I wanted to–I would file in the Superior Court for Sacramento County. But since this case involves my federal civil rights, I’ll probably want to go to the federal courts. Federal courts have judges who have life tenure, while state court judges are often local politicians, reluctant to interfere with local things like school boards. Federal judges are usually more experienced. And since federal court rules are the same throughout the nation, lawyers often feel more comfortable there anyway.

So I would go to the federal trial court. Here in Sacramento, that’s the Eastern District of California. If I lost there, I would appeal to the Circuit Court of Appeals. Here in California, we’re in the Ninth Circuit. There, my case would be heard by a three judge panel, and they would write an opinion and a judgment which either affirmed or reversed the decision of the District Court. An opinion explains a judgment. The judgment is just, affirm or reverse, but the opinion says “here’s why we’re affirming or reversing.” Suppose they affirm, which means they uphold my having lost in the District Court. My next step is what’s called “en banc rehearing,” which is where I ask all the judges in the Circuit to hear my case. (Actually, in the Ninth Circuit, not all judges would hear it, but in most circuits, all would. The Ninth Circuit is so big that we just have a whole bunch of judges hear your case, rather than having all of them hear it. This is also a bit of a controversy in the legal world right now.)

Usually en banc rehearing is denied. If it is, or if it’s granted and I lose again, then I would ask the Supreme Court to take the case. The Supreme Court doesn’t have to hear any case like this. So you have to ask permission, which in legal jargon is called “petitioning for a writ of certiorari.” If they accept the case (called “granting cert.”), then I would write a brief and go and argue in front of the Supreme Court. They would then write an opinion.

Now, it gets a little tricky here. The judgment is really all that matters to the outcome. If they reverse, then I go back down to the Ninth Circuit, or probably to the District Court, and go ahead with my case. If the SUpreme Court affirms my loss, I lose and that’s it–end of case, nothing more I can do except maybe amend the Constitution. But the opinion–the reasoning behind their judgment–is the part we’re all interested in, because it explains how future cases will go. And an opinion is only binding law if it gets five of the nine justices to sign on to it. Suppose they divide their opinion into three parts, and five of the justices only agree with parts I and III, but only four agree with part II. Then only parts I and III are binding law, because they are the “opinion of the Court.” Part II, which only got four justices, is a “plurality” opinion. And if a justice disagreed with all of it, he might write a “dissenting” opinion, which is just his explanation of why he disagrees. These can be interesting, of course, and useful, but they’re not law. This is all important because in the evolution context we’re usually dealing with the religion clauses, and the court rarely has a good solid majority for its positions on such issues. This makes it very confusing, because lawyers have to figure out what parts of these opinions are law and what parts are just pluralities and so forth.

So let’s take a look at a Supreme Court opinion. Here is the decision in Tinker, the black armbands case. It starts out with a syllabus, which briefly explains the case. This is just for aid–it’s not law. It says “Petitioners, three public school pupils in Des Moines, Iowa. . .” They’re called the petitioners, of course, because they petitioned for a writ of certiorari. That means they must have lost the case in the court below (that is, the Circuit Court), or otherwise they wouldn’t have asked the Supreme Court to take their case. Anyway, it says they asked for “an injunction against a regulation that the respondents had promulgated banning the wearing of armbands.” So it must have been a 42 U.S.C. §1983 case seeking an injunction, as explained above. “The District Court dismissed the complaint. . .” remember, the District Court is the trial level court. That’s where you would begin your case by filing your complaint. So they lost at the trial level. Why? ”. . .on the ground that the regulation was within the Board’s power, despite the absence of any finding of substantial interference with the conduct of school activities.” So the District Court said that the school board had the authority to pass a rule banning armbands, even though the school board didn’t have any evidence that armbands cause a disruption in the classroom. “The Court of Appeals, sitting en banc, affirmed by an equally divided court.” I explained what affirmance means, and what en banc means above. What is an equally divided court? Well, suppose you have 10 judges hearing your case, and five go one way and five the other way. The rule is that this is an affirmance, but it is very unsatisfying! So it’s an affirmance, but it doesn’t set any precedent. (I’ll explain precedent below.)

So the Supreme Court granted cert. Next you see the names of the lawyers who argued the case. One guy sticks out: “Charles Morgan, Jr., filed a brief for the United States National Student Association, as amicus curiae, urging reversal.” An amicus curiae–that’s Latin for “friend of the court”–is a person who is not really involved in the case, but has a stake in the outcome, and wants to get in his two cents. Friends of the Court briefs give the court information, background, or a new argument that the parties themselves didn’t bring up.

Now, we see “MR. JUSTICE FORTAS delivered the opinion of the Court.” Now, we know that this is the “opinion of the Court,” which means that what follows is law–it received support from at least five of the nine justices. Then the opinion explains the reasoning. At the end, we find the judgment: ” We reverse and remand for further proceedings consistent with this opinion.” Remand means “send it back to the court below.” Notice no dissent! That means the case was unanimous. That’s pretty unusual.

If you’re still awake, we’ll look at another case. Here’s Allegheny County v. ACLU, 429 U.S. 573 (1989), which asked whether it violated the First Amendment for the County to put up a big Christmas display, including a manger with “an angel bearing a banner proclaiming ‘Gloria in Excelsis Deo,’” on the County Courthouse steps. We find<blockquote>BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined. . .. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. . .. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. . .. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined. . ..</blockquote>

Now, the judgment is clear–it’s the judgment “of the court.” But as to what parts of the opinion got five justices support? Well, it says Parts III-A, IV, and V were the opinion of the Court. The rest is all dicta. (I’ll explain dicta below.) Sometimes lawyers have to draw charts to figure out who agreed with what and so on. This, by the way, is not the worst one. The worst one I’ve seen is last year’s McConnell v. FEC.</i> See if you can figure that one out.

III Legal thinking

Law is a limitation on action. Lawyers therefore generally think in terms of boundaries. The law is a boundary beyond which individuals may not go; the Constitution is a boundary beyond which the government may not go.

The Constitution is a law for laws–it bans the government from doing certain things. It does not regulate private behavior (except the 13th Amendment, which makes slavery illegal). It only regulates action by states or by the federal government. You often hear people say that another citizen has violated their right to free speech, for instance, but this is inaccurate. The Constitution only prohibits the government from violating your right to free speech. It doesn’t have anything to do with a private person violating your rights. That’s a matter for tort law or criminal law. If you get beaten up by your neighbor, that’s a tort law or criminal law matter. If you get beaten up by a cop, that’s a constitutional matter, because that’s state action. There are good criticisms of the state action doctrine, but it is the law.

When a court decides a case, we say that it sets a precedent. Precedent merely means that something was decided in some way by a court. Sometimes other courts are required to obey precedent, and sometimes they are not. The federal courts are required to obey the Supreme Court’s precedent, for instance, because it interprets federal law. But state courts are free to ignore federal precedent when they’re considering state laws, because the federal government has no authority to interpret state laws. Suppose California passes a law that changes the punishment for robbery from ten years to five years. If the United States Supreme Court were to hear a case involving that law (which is unlikely), their decision might not be binding on state courts, because the Supreme Court only deals with federal laws. They can interpret state laws all they want, but state courts are free to ignore those decision when they are only a state law matter. Of course, if a state court is interpreting a federal law–or, as we learned in Bush v. Gore,</i> if they’re interpreting a state law in a manner which violates federal law, then the federal court’s decisions will be binding. But when a state court is just interpreting a state’s laws, and no federal law is involved, then the feds have nothing to say about it. Likewise, federal courts can overrule state courts when state courts interpret federal laws.

For example, in Nike v. Kasky,</i> Nike claimed that its federal rights were violated by the enforcement of a state business regulation. The California Supreme Court rejected Nike’s argument. Now, insofar as the California Supreme Court’s decision was interpreting California’s business regulation, that was the final word–it’s a California law, and the federal courts can’t do anything about that. But since Nike was claiming that the enforcement of the law violated their federal rights, they could petition the United States Supreme Court to take their case. (Which they did, and then dismissed for technical reasons.)

Even when a court is not required to follow precedent, it often will, because precedent is often very persuasive. If a court has heard an identical case, and decided in a certain way, that’s at least some guidance as to how to decide future cases. They’ll even borrow cases from other jurisdictions. Sometimes Nevada’s state courts rely on California’s decisions; sometimes the federal courts will even rely on international decisions (which, again, is controversial). But since the United States legal system is based on the English common law system, we rely on these precedents–this is called “stare decisis.”</i> Sometimes courts can “overrule” old cases when they think the old case was wrong. In the recent case of Lawrence v. Texas,</i> for instance, the Supreme Court overruled its earlier decision in Bowers v. Hardwick.</i> Of course, no inferior court can overrule a higher court’s decisions–so only the Supreme Court can overrule its own decisions.

Often lawyers reason by analogy to precedent. Suppose there’s a case involving a car accident where the driver swerved off the road to avoid a deer. A lawyer might not find any precedent on the subject involving these same facts, but he might find a case from, say, the 1890s involving a horse-drawn buggy that swerved to avoid a rabbit. He could make an argument that the principles from the old case are applicable to the present case, and the court might then rely on the analogy.

Now, I said that lawyers think in terms of boundaries. In my earlier posts, I’ve said that the Establishment Clause of the First Amendment (as incorporated by the Fourteenth Amendment) only prohibits the state from teaching religion as true, but does not prohibit the state from teaching bad science. Of course I don’t think states should teach bad science. But there’s no law against it. The state is therefore “free” to do what it “chooses” (a state can’t choose; citizens can, but whatever) within the boundaries of the Establishment Clause. This part frustrates people a lot, because they want the law to say you must do this, or you must do that, but the law rarely does that. Usually it just says, you may not cross this line, but you may do whatever you want otherwise. This is a good thing, in the end–it protects individual freedom.

I mentioned that courts issue both opinions and judgments. An opinion is the reasoning behind the case. Only that part of the opinion which is necessary to the judgment is law. Everything else is just what we call dicta. That is, it’s only persuasive precedent, even to courts that are required to obey precedent. Suppose the Supreme Court decides that a driver is at fault when he swerves into the other lane to avoid a deer. Suppose further that the Court writes an opinion that says “But we think that drivers who swerve to avoid rabbits are not liable.” A Circuit Court–which is required to obey the Supreme Court’s precedent–could still ignore this passage, because it’s just dicta. It’s dicta because the earlier case was only about deer, and the Supreme Court was just speculating about a rabbit case. The speculation was not necessary to the judgment, so this is just dicta, and therefore it’s just persuasive, not authoritative.

Lawyers also make use of what are called “legal fictions.” These are something like what a scientist calls a “model.” They’re ways of understanding things or dealing with problems that would not otherwise make sense. Law is full of such fictions–some would argue that law is a fiction, a system of mythology to explain the use of physical force. A good example of legal fiction is what is called “constructive notice.” This is where you buy a house that (surprise!) actually was already sold to someone else. You go to court, and the court says “Well, you were on constructive notice that the house belonged to someone else, because you could have gone down to the county records office and looked up the title to the house.” Obviously you weren’t on actual notice. But since there’s no way to prove actual notice (cases would then just become he-said, she-said disputes about a person’s subjective knowledge) the “constructive notice” system is designed to turn a subjective thing into an objective thing that a court can find evidence about. The word “constructive” is often, but not always, used to indicate a legal fiction. But there are many things that are legal fictions–state action doctrine, for instance, is a legal fiction. Does it really make a difference if you’re beaten up by a sheriff when he’s on duty, as opposed to when he’s off duty? Not really–yet in the former case, it’s a constitutional matter and you would sue under 42 U.S.C. §1983; while in the latter, it’s not a constitutional matter, and you would sue him under your state’s tort law.

Legal fictions can often seem like “technicalities” to laymen, but technicalities are extremely important–in some ways, all of law is a technicality. Take, for example, the concept of “standing.” This is a rule that says that you can’t come into court just to air some general political complaint. If you think, say, that taxes are too high, you can’t go sue about that. You have to show that you’ve been injured in a way that courts can recognize. The formula is: “a concrete and particularized injury, fairly traceable to the defendant’s conduct, that a favorable court decision can remedy.” You must show this to get into court.

The reason this is important is to preserve the role of the legislature in the constitutional scheme. If you can go to court for absolutely anything, then you might as well not have an elected legislature. But many people objected to the decision in the recent case of Elk Grove School Dist. v. Newdow,</i> which held that Mr. Newdow lacked standing to sue regarding the pledge of allegiance. The decision is actually very important because it deals with the question of whether parents can assert the rights of their children if they don’t have custody of the children.

This brings something to mind: an important thing to remember about legal reasoning is that the issue is often what question you’re asking, rather than the more obvious issues involved. Suppose a teacher wants to teach his students that pandas are fluent in Mandarin Chinese. That’s bad science, and should not be taught in school–but that is not the legal question. The legal question is whether the law prohibits the teacher from doing so. And that is entirely different from the merits of the teacher’s claim, because the law doesn’t necessarily prohibit a teacher from teaching nonsense. People often get very frustrated at lawyers because they think in a common sense way–why, teachers shouldn’t teach such nonsense–when that is not the legal issue. People sometimes react by saying that lawyers are manipulating the question, or twisting their words, but what we’re really trying to do is get the right question and then the right answer to that question. Lawyers are very sensitive to people using rhetoric instead of logic–we get it all the time. A person starts crying flag-waving peans about “We the people” and whatnot, when what we’re asking for is the answer to a very precise question. And people often see things as related when they aren’t–even lawyers do this. People confuse the Free Exercise Clause and the Establishment Clause of the First Amendment all the time, even though they’re very different things. And lawyers often ask annoying “what if” questions, like “Suppose that this happens, what then?” We are trained to play that game all day long if necessary, because what we do is draw boundaries–that is, rules–and there’s almost always some exception to any rule.

Kids are natural lawyers. They ask “what if” all the time. You tell a child “Don’t eat the cookies.” They immediately think “what about the cake?” You say “don’t eat the cake,” they say “what about the pie?” You say “don’t eat any of the desserts,” they go and heap their plates with nachos, and when you scold them they say “But it’s not a dessert!” So you say “Don’t eat any of the food on that table,” and they go to the other table and eat off of it. Lawyers play the same game all the time. If I’m not allowed to do X, then can I do Y? And what about on the weekends, can I do X then? This bothers a lot of people, but lawyers need to do this, if we’re going to figure out where the lines are drawn.

Lumbermen produce lumber, artists produce art, lawyers produce society. And the way we do it is by asking where the boundaries are drawn between people. It’s often a thankless job.


If anyone is still awake at the end of this, and has any questions about any aspect of the law, I’d be happy to answer (or try) in the comments section.