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American Legal Structure: Legislation and Administrative Agencies

American Legal Structure: Legislation and Administrative Agencies. Francis J. Mootz III Dean and Professor of Law The University of the Pacific, McGeorge School of Law Sacramento, CA USA . Overview of 5 Lectures.

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American Legal Structure: Legislation and Administrative Agencies

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  1. American Legal Structure: Legislation andAdministrative Agencies Francis J. Mootz III Dean and Professor of Law The University of the Pacific, McGeorge School of Law Sacramento, CA USA

  2. Overview of 5 Lectures • Overview of U.S. Legal System: Federalism, Common Law, Modern Administrative State • How Should Judges Interpret Statutes? • Example: Federal Power in Immigration Law

  3. I. Constitutional Structure • Enlightenment philosophy: law comes from the people, embodied in a written constitution. • Tripartite Division of Power: • Legislature • Executive • Judicial

  4. Federal System; Separation of Powers • A model for the EU experiment? • States are sovereign, but only in limited way • Commerce Clause power is very broad. • Health Care case protects limits. • Immigration case shows real limit of states.

  5. Common Law Basis of U.S. Law • Judge-discovered law (Blackstone) • Statutes narrowly construed and suspect • “Lines of Argument” in common law methodology

  6. Constitutional Rights and Common Law Methodology • Branches of government: structural • Bill of Rights • Controversy over need to articulate rights. • Incorporated against states through 14th A. • Quick overview of interpretive issues arising under the Bill of Rights.

  7. 1st Amendment: The tension of political secularization • Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; • Or abridging the freedom of speech, or of the press; • Or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

  8. 2nd Amendment: Who has the right to possess guns? • A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

  9. 4th Amendment: Protection against police abuse. • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

  10. 8th Amendment: Limiting excessive punishments • Excessive bail shall not be required, • nor excessive fines imposed, • nor cruel and unusual punishments inflicted.

  11. 9th Amendment: The source of rights and power is the people. • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

  12. 10th Amendment: Federalism • The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, • Or to the people

  13. CONCLUSION • The common law heritage shapes how the U.S. regards statutes. • Separation of Powers and Federalism affects the treatment of statutes. • The experience of a written constitution also shapes interpretive approaches.

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