DGME 102 Digital Media class essay

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This is a Digital Media class essay. (This chapter is about Law). Read the Chapter 1 - Introduction to the Legal System, and Read and complete "Questions for Discussion" at the end of the chapter. For the specific requirement, please see the picture i sent. Read this chapter first before your writing. Thank you so much!!

DGME 102 Digital Media class essay
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DGME 102 Digital Media class essay
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1 TE RI AL Introduction to the Legal System GH TE D MA It makes no sense to dive into a particular area of law without understanding the basic structure of the legal system and its terminology. This chapter describes the primary sources of law in the United States and provides a guide to find them. It explains the structure of the federal and state court systems, the basic differences between civil and criminal law, and the role of judicial review in the United States. It can be used to establish a foundation before proceeding to other chapters and as a reference later when you need to review a particular concept. RI The Meaning of Law CO PY Before discussing how law is made, it might be helpful to define it generally. Law is a system to guide behavior, both to protect the rights of individuals and to ensure public order. Although it may have a moral component, it differs from moral systems because the penalties for its violation are carried out by the state. Digital media law encompasses all statutes, administrative rules, and court decisions that have an impact on digital technology. Because technology is always changing, digital media law is in a state of continuous adaptation. But its basic structure and principles are still grounded in the “brick and mortar” legal system. Sources of Law in the United States All students are taught in civics class that there are three branches of government and that each serves a unique function in relation to the law. The legislative branch makes law. The judicial branch interprets law. And the executive branch enforces law. Although this is true, it is also a little misleading because it suggests that each branch is completely compartmentalized. Actually, all three branches make law. 2 Introduction to the Legal System The legislative branch produces statutory law. The executive branch issues executive orders and administrative rules. The judicial branch creates common law and law of equity. In the United States, sources of law include constitutions, statutes, executive orders, administrative agencies, federal departments, and the judiciary. The most important source of law, however, is the U.S. Constitution. Constitutions A political entity’s constitution is the supreme law of the land because it is the foundation for government itself.1 The constitution specifies the organization, powers, and limits of government, as well as the rights guaranteed to citizens. Because the legislative, judicial, and executive branches of government draw their power from the U.S. Constitution, they cannot act in opposition to it. It is only through a three-fourths vote from the states that the Constitution may be altered. In addition to the federal Constitution, there are 50 state constitutions. States are sovereign entities with the power to make their own laws. However, their laws must operate in accord with their own constitutions and the federal Constitution. The U.S. Constitution also requires that states give “full faith and credit” to each other’s laws and judicial decisions. Statutes When we think about the word “law,” we generally have in mind the statutes passed by our elected representatives as part of city councils, county commissions, state legislatures, and the U.S. Congress. These laws, called ordinances at the city level and statutes at the state and federal level, are meant to serve as guidance to people before they act. Criminal law, in particular, must give people fair warning that an act is illegal before punishing them for violating it, so it is always statutory. Statutes are intended to address potential social needs and problems, so they are written broadly to apply to a variety of circumstances. But their broad language sometimes creates confusion regarding the meaning of particular terms. In such cases, it falls to courts to interpret their meaning. Courts do this by looking at the statutory construction of laws, otherwise known as their legislative history. When laws are passed, they go through a series of committees. Each committee files a report, documenting its actions related to the law. This history of the legislative process usually includes the legislators’ intent regarding the law’s scope and interpretation. Judges may review the reports to find out what was discussed when legislators were hammering out the legislation and how they intended it to be applied. As you read federal statutes, you will notice that many of them apply to activities carried out through “interstate or foreign commerce.” For example, the federal stalking statute applies to anyone who uses “a facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress.” Introduction to the Legal System 3 Likewise, federal law prohibits the transmission of obscene materials through interstate and foreign commerce. This phraseology is added to bring activities within the federal government’s jurisdiction. The federal government does not have police powers as states do. So it regulates illegal activity through its exclusive jurisdiction over commerce. Article 1, Section 8 of the U.S. Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States …” Application of the term “commerce” does not mean that money must change hands. When the Constitution was written, commerce was also used in a non-economic context to refer to conduct. Congress applies the term loosely to conduct that crosses state and national borders. Activities carried on within a single state must be regulated under state law. Executive orders Within the executive branch of government, mayors, governors, and presidents have the power to issue executive orders, which are legally binding. Some executive orders are issued to fill in the details of legislation passed by the legislative branch. For example, if Congress passes a bill requiring action on the part of federal agencies without providing sufficient information about how its mandate is to be implemented, the president may issue an executive order specifying procedure. In other cases, executives issue orders of their own accord to promote their policies or to regain order in the event of a threat to security. Following a natural disaster like a hurricane, for example, a governor may issue a state of emergency, which would empower him or her to make binding rules for a certain period of time. Executive orders are passed without the legislature’s consent, but the legislature may override them with enough votes. Congress could override a presidential executive order, for example, with a two-thirds vote. Administrative agencies and federal departments Also within the executive branch, independent administrative agencies and federal departments are empowered to make administrative rules that carry the force of law. Independent administrative agencies Independent administrative agencies are so named because, although they are part of the executive branch of government, they carry out the mandates of the legislative branch in specific government-regulated industries. Agencies monitor technical areas of law thought to be better handled by specialists than members of Congress. Not only do they have the power to make rules and enforce them with fines and other retaliatory measures, but federal agencies also serve a quasi-judicial function. Their administrative courts are the first to hear cases related to violations of agency rules. 4 Introduction to the Legal System Congress passed the Administrative Procedures Act in 1946, to specify the protocol for agency rule-making and enforcement.2 One of the Act’s purposes is to keep agency rulemaking open to provide opportunities for public participation. To that end, the law requires agencies to publish notices of proposed rulemaking, opinions, and statements of policy in the Federal Register. Administrative rules are later codified in the Code of Federal Regulations. Another purpose of the Administrative Procedures Act is to keep the process for rulemaking and adjudication across agencies relatively consistent by prescribing uniform standards and a mechanism for judicial oversight. A federal court may set aside an agency decision if the rule is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”3 It is not the court’s role to substitute its judgment for the agency’s, but to ensure that when an agency creates a new rule or modifies established policy that it articulates “a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”4 A court may conclude that an agency action is arbitrary and capricious if it has • relied on factors Congress did not intend it to consider; • failed to consider an important aspect of the problem; • offered an explanation for its decision that contradicts evidence before the agency; or • is too implausible to be ascribed to a difference in view or agency expertise.5 Independent agencies most likely to be involved with digital media law are the Federal Communications Commission and Federal Trade Commission. The Federal Communications Commission regulates interstate and international communication emanating from the United States. The Federal Trade Commission enforces fair advertising, consumer protection, and antitrust rules. Federal departments Federal departments also make administrative rules, but do not act independently of the executive branch of government. Their leaders are appointed by the president and make up the president’s cabinet. The federal departments most likely to be involved with digital media law are the Departments of Commerce and Justice. The Department of Commerce fosters economic development and technological advancement. Among its many bureaus is the National Telecommunications and Information Administration, which acts as the administrative branch’s policy advisor for telecommunication issues. It also serves as the contracting agency for the Internet Corporation for Assigned Names and Numbers (ICANN), the nonprofit corporation responsible for the management and coordination of Internet domain names and addresses. The Department of Justice, led by the Attorney General, supervises federal law enforcement. As such, it is involved in the prosecution of crimes, such as incitement to violence, fraud, threats, and distribution of obscenity, that may be carried out through digital media. The Justice Department also represents the United States in civil suits against the government. Cases challenging U.S. law before the Supreme Court frequently include the Attorney General’s name as one of the parties. Introduction to the Legal System 5 Common Law and Law of Equity In all legal systems, the role of courts is to determine whether law is applied appropriately in particular cases. But in common law legal systems, like those of England and its former colonies, courts have the power to make law. In the United States, courts have the power to strike down laws that are unconstitutional as well. Common law legal systems inherited two forms of judge-made law from England – common law and law of equity. Common law is customary law that has evolved through the common practices of a people. In theory, judges find or discover common law, but in practice they actually make it. Its history dates back to twelfth-century England. King Henry II appointed judges who would ride out to English territories, divided into circuits, judging cases that had accumulated in each village or town. The judges applied laws developed through the central court, called the King’s Bench. As they did so, local customs were replaced by a national common law. Circuit judges applied the common law equally, but equal application does not always ensure a fair outcome. When the rules became too rigid, the common people appealed to the king for mercy. The king referred them to his chancellor, who opened the Court of Chancery to issue equitable relief when it seemed appropriate. The Court of Chancery became a court of equity. Judges still have the power to grant equitable relief, although they rarely do so in separate courts anymore. Nor is the law of equity a separate legal system. Equity is a supplement to common law that provides remedies common law cannot. Common law has the power to compensate a person for harm after the fact, but no mechanism to prevent an action likely to cause harm. For example, there is no relief under common law to prevent a person who has obtained an illegal copy of a yetto-be-released feature film from putting it on the Internet. Once it has been published on the Internet, the person who uploaded it can be sued or punished, but by that time the market value of the film may have plummeted. Equity fills the gap. Using the law of equity, a judge can impose a restraining order or injunction to prevent the thief from acting before the harm occurs. Precedents The decisions that judges make in common law systems form precedents that later courts follow as law. The practice of following precedents is known as stare decisis (pronounced stair-ee da-sy-sis), which literally means “let the decision stand.” The part of the case that sets the precedent is called the holding. This is the court’s actual decision regarding the specific facts of the case. In some cases, a court will be very helpful by saying, “We hold that … ,” but other times you have to sift though a lot of text to find the golden nugget. Collateral statements made by judges are referred to as obiter dictum or “dicta.” This is all the rest of the text in a judicial opinion. Dicta (which often encompass a lot of analogies, opinions, and explanation) can be interesting, but are not legally 6 Introduction to the Legal System binding. Dicta may be used to understand a court’s reasoning and provide an indication of how it might rule in the future. In a decision from an appellate court, which involves a panel of judges, the precedent or holding comes in the part of the opinion issued by the court’s majority. When judges on the panel support the conclusion rendered in the majority opinion, but for different reasons, they issue a concurring opinion that supplies an alternative analysis. Judges who disagree with the majority’s conclusion issue a dissenting opinion. Concurring and dissenting opinions are published with the majority opinion, so someone reading the case can acquire a full understanding of the court’s reasoning. Occasionally, an appellate court will release a plurality opinion, in which there is majority support for a conclusion but no majority support for a rationale supporting the conclusion. The plurality’s opinion is the rationale that received the most support. Plurality opinions are narrowly interpreted. Only those aspects of the plurality opinion that draw support from concurring judges are binding. Court precedents are either binding or persuasive. A binding precedent is one that a court must follow. A persuasive precedent is one that a court may use as guidance but also has the prerogative to reject. Whether a precedent is binding depends on the court’s jurisdiction and hierarchy. Jurisdiction refers to the forum in which the case will be decided. There are two separate systems of jurisdiction – the federal system and the state system. A decision from a higher court always binds a lower court in the same jurisdiction. Modifying, distinguishing, and overruling precedents The concept of stare decisis may lead one to assume that common law courts are always bound by earlier precedents. In fact, they are not. The law is a lot like a coral reef. Precedents build upon one another in some areas, while in other areas they remain relatively consistent or may even be torn down. Courts have the option of modifying, distinguishing, or overruling precedents. Courts modify a precedent when they adapt it to fit a new situation. For example, courts had to modify “print-based” precedents to fit the first copyright cases related to the Internet. Courts distinguish a precedent when they determine that it does not fit the particular case or situation under analysis. For example, when the Supreme Court reviewed the Communications Decency Act, a law intended to control indecency on the Internet, the government tried to persuade the Court that the Act’s restrictions on Internet speech were analogous to restrictions imposed on “dial-aporn” that had already been upheld. The Court distinguished the dial-a-porn precedent from the Internet case because they dealt with different media. Courts overrule precedents when they decide that the precedents are no longer good law. For example, the Supreme Court decided in 1915 that films were public spectacles unworthy of First Amendment protection.6 The Court reversed its opinion in 1952, deciding that films, like other media, are a form of protected expression.7 Introduction to the Legal System 7 The Difference Between Common and Civil Law Legal Systems Common law legal systems are unique to England and her former colonies. Civil law systems are actually more common. Civil law is used in most of Europe, all of Central and South America, parts of Asia and Africa, and in some states within common law countries, such as Louisiana in the United States and Quebec in Canada.8 Judges do not make law in civil law systems. They rely exclusively on statutory law, usually set down in codes that are cohesively structured. Civil law is based on deductive logic. There is one rule of law and decisions for cases are drawn from the rule. In contrast, common law relies on inductive logic. The rule is based on a general conclusion from a number of cases. Not only is civil law the dominant legal system, it is also the oldest. Its heritage can be traced back to the early Roman Empire. In the sixth century, the Emperor Justinian amassed all law into a unified code called the Corpus Juris Civilis. More commonly known as the Justinian code, it included a dictate that rejected precedent. It stated that “decisions should be rendered in accordance, not with examples, but with the law.”9 This policy can be traced back to Roman tradition, in which judges were appointed on a case-by-case basis and magistrates were appointed for no more than one year. As such, their individual decisions were not accorded much weight.10 As an alternative to stare decisis, civil law judges follow the doctrine of jurisprudence constante. The doctrine of jurisprudence constante does not require judges to follow earlier precedents; nevertheless, judicial deference to earlier decisions is commonplace. “Under civil law tradition, while a single decision is not binding on courts, when a series of decisions form a ‘constant stream of uniform and homogenous rulings having the same reasoning,’ jurisprudence constante applies and operates with ‘considerable persuasive authority.’ ”11 The Structure of Court Systems A court’s jurisdiction and hierarchy within the system determines whether the decision it renders will be a binding precedent. So a basic knowledge of the structure of court systems is essential before reading particular cases. In the United States there are two court systems: the federal system and the state system. Whether a case enters the federal or state system depends on the issue and parties involved. The federal court system Federal courts address cases that involve constitutional questions, federal statutes, and treaties. They also hear bankruptcy cases and diversity cases, which involve parties from different states, if the amounts in controversy exceed $75,000. 8 Introduction to the Legal System The federal court system includes the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts ...
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Digital Media class essay
Law is a system of rules and regulations that govern the behavior, protect rights of people and
ensure adherence of public order in a...

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awesome work thanks

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