What are laws?

Before we start studying communication law, we need to understand how the legal system works. Let’s start by defining law.

This is my son, Casey. He studied law at the Knight School of Law at the University of Oregon. He passed the Washington Bar Exam and now practices family law at a big family law firm that stretches from Washington through Oregon. In 2018-2019, Super Lawyers named him a Washington Rising Star and he has a Avvo.com “Superb” rating.

Casey E.R. Sanders
Family Lawyer
McKinley Irvin Family Law
Vancouver, Washington
“Best lawyer ever” says his mom.

Okay, enough bragging about my son. I mention him because he is someone who studied and practices law. But the legal system also “makes” laws.

Creating law

Legislative bodies like the U.S. Congress or the Washington State Legislature make laws. (Or at least they are suppose to make laws. Sometimes they get so caught up in politics that they forget to do they work. End of Terri editorial!)

A law written by Congress regarding airport security

There are several different ways laws come about. And we’ll explore each type.

  • Common Law
  • Equity Law
  • Statutory Law
  • Constitutional Law
  • Administrative Law
  • International Law

Common Law

“Judge-made” law would be another way to describe common law. Judges based their rulings on what other judges have done in the past. It’s called precedence. So when Judge Sparks or Hooper make a decision in their courtrooms, they look back to see how other judges have ruled. You may not agree with how they rule, but they follow the common laws made by previous judges. (And, of course, you always have the right to appeal the judge’s decision. More about that later.)

Equity Law

Some legal cases pose such different, unusual or unique questions, there is not precedence. That’s when a judge’s ruling creates an equity law. It’s a judge-generated law based on common sense rather than legal precedence.

For example, when the New York Times and the Washington Post both printed a Department of Defense (DOD) report on the Vietnam War… better known as the Pentagon Papers. The Defense Department said the newspapers were printing illegally pertained top secret information. While the papers proved embarrassing to the Kennedy and Johnson White Houses, the Nixon White House didn’t want the report published, for fear it would set a precedence. (There’s that word again!)

The case very quickly ended up in front of the Supreme Court. SCOTUS (Supreme Court of the United States) said something to the effect of “We’ve never had a case where a newspaper has printed top secret information that they did not steal.”

A DOD worker, Daniel Elsberg, actually sneaked the papers out of the defense building and gave them to the newspapers. So the newspapers didn’t “steal” the report.

And while the government marked the papers “top secret,” the report indicated the government hadn’t been exactly truthful about how the war was going in Vietnam.

The judges had to weigh the importance of the “top secret” report with the right of the public to know what the h*ll was going on in Southeast Asia.

There was nothing on the books that dealt with these types of questions, so the judges had to use common sense and make a ruling. SCOTUS looked at previous cases that somewhat related to the situation, but they basically relied on their common sense. The newspapers didn’t steal the documents and the information in the documents was important enough to squash the “Top Secret” stamp on the report’s front cover.

It turns out the Johnson Administration lied to the American people and Congress about the status of the Vietnam War. The NY Times and Washington Post printed the rest of the report in their newspapers. It became a turning point in getting the U.S. out of Vietnam.

I think King Solomon created his own version of equity law back in the Old Testament.
Two women claimed to be the mother of an infant.
The king couldn’t figure out who was telling the truth, so he came up with a test.
He told his servant to cut the baby in half and let the mother’s both share the child.
One woman begged Solomon not to cut the baby in half.
She would let the other woman raise the child.
That’s how Solomon determined the woman willing to give up her child was the real mother.
He used common sense to figure out how to determine who the identity of the real mother.

Statutory Law

In the last legislative session, the Washington State Senate passed a bill requiring presidential candidates to release the last five years of their tax returns before they can be listed on the Washington ballot. The House of Representatives decided not to deal with the bill. Although, insiders say it should pass during the 2020 session.
Other states are considering similar bills. If even one state passes the bill into law, it will force presidential candidates to release their tax returns or risk not being on that state’s ballot.

Okay, SB 5078 isn’t a law. But a statutory law starts its life as a bill. City councils, county commissions, state legislatures and Congress can all pass statutory laws.

I could sit here and try to explain the bill becomes a law process, but the good people at Schoolhouse Rock did an excellent job of it back in the 70s. Yes, I know it’s a cartoon. Yes, I know it’s for kids. But, yes, it does a great job of explaining a complicated process in just a few minutes. So, click the Schoolhouse Rock: How a Bill Becomes a Law image below, sit back for 3 minutes and learn how the legislative process works. (There will be a quiz!)

Schoolhouse Rock – How a Bill Becomes a Law

If that seemed a bit fast for you, check out Junior Scholastic’s link on how a bill becomes a law.

BTW- There is a difference between Congress and the Washington State Legislature. Congress includes both the U.S. Senate and House of Representatives. The two U.S. Senators who represent us in Washington D.C. are Patty Murray and Maria Cantwell. Ellensburg is in Congressional District 8. Kim Schrier represents our district in the House of Representatives.

You can find your Congressional Representatives by using this link.

The woman who represents the Ellensburg area in the Senate in Olympia is Judy Warnick. She lives in Moses Lake. Rep. Tom Dent has introduced several bills to help Central’s Aviation Program. He also comes from Moses Lake. Alex Ybarra lives in Quincy. He is the second representative from the 13th District which extends from Reardan, over to Coulee City, Ephrata, George, Ellensburg, Cle Elum, and up to Snoqualmie Pass.

You can find your state senators and representatives by filling out the form
on this state web site.

Constitutional Law

Way, way back when I finished high school, the people of the United States considered adding the Equal Right Amendment to the Bill of Rights.

The ERA simply stated: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

This is an example of a constitutional law (that didn’t become law). A constitutional law must be generated by Congress. Once it passes all the Congressional hurdles, it must be approved or ratified by 3/4 of the states.

In order to be ratified, the ERA needed to have 38 state ratify the amendment. Originally, the Congress set the ratification deadline for 1979. By 1977, 35 states voted to ratify the amendment. Congress voted to extend the deadline to 1982.
This woman spoiled everything! (Terri’s editorial comment)

It looked like the ERA would become a Constitutional Law but then Phyllis Schafly showed up on the scene. Schafly was a conservative constitutional lawyer. She started saying the ERA would actually hurt women more than it would help them. She said women would be less likely to get custody of their children or alimony in a divorce under the amendment. She said women could be drafted. She said a lot of stuff. The kind of stuff that caught the ears of conservative groups around the nation.

The map above shows how close we came to having equal rights for women. This is one constitutional law that never became law.

Bottom line, the ERA amendment died.

There are 27 Constitutional Laws. The first 10 make up the Bill of Rights (Freedom of the Press, the Right to Bear Arms, unreasonable search and siezure, etc.) Prohibition (18th Amendment) stopped legal drinking in this country. So why can you legally grab a drink at The Tav, The Pearl or 301? Because the states (in record fashion) ratified the 21st Amendment which repealed the 18th Amendment. We’ve limited the number of terms a president can serve to two (22nd Amendment). You, if you are 18 or older, have the right to vote thanks to the 26th Amendment.

Administrative Law

Sometimes the information needed to create a law is too specific for legislation. That’s where Administrative Law comes into play. Government agencies like the Federal Communication Commission, the Federal Trade Commission and the Securities & Exchange Commission often create regulations or laws specific to their area.

The FCC determines who can own a television or radio station and how many stations they can own. The FTC can issue regulations that protect consumers and stop big business from having a monopoly in the marketplace (antitrust laws). The Securities and Exchange Commission says it’s illegal to share insider information about the stock market. As a result, Martha Stewart does jail time.

Administrative law can only be created by independent government agencies. And, the legislative branch of government (House of Representatives, Senate and President) still have some control over what regulations are made.

Now there are other non-government agencies that also set up guidelines.

The Motion Picture Association of America set up the movie rating system. The music industry set up regulations that say music with explicit lyrics must have a label. The Direct Marketing Association has regulations about what you can and can’t do with direct marketing. These are NOT, I repeat, these are NOT Administrative Law. That’s because these organizations are NOT government agencies. They represent industries who make up their own set of rules and guidelines. They mostly do this to avoid potential legal problems.

International Law

International law involves treaties… or a set of rules/guidelines/laws… that countries agree to follow.

The NAFTA trade agreement between the U.S., Mexico and Canada is an example of International Law.
The Kyoto Protocol on Climate Change is an agreement between 192 countries. The protocol calls for each country to reduce it’s greenhouse emissions based on the scientific evidence of Global Warming.
The countries who have not signed the protocol? Afghanistan, the Sudan and the USA.
In 2015 the U.S., China, France, Russia, the United Kingdom and other countries worked with Iran to create the Joint Comprehensive Plan of Action, better known as the Iran Deal. Under the agreement, Iran would reduce or eliminate its stockpile of enriched uranium and take other steps to limit its abilities to get into the nuclear arms race.
In May 2018, President Trump made good on a campaign promise and pulled the U.S. out of the Iran Treaty. ‚ÄúThis was a horrible one-sided deal that should have never, ever been made,” he said. The U.S.’s withdrawal from the treaty basically left the deal in tatters… although Iran said it would continue to follow the guidelines outlined in the treaty.

Assignment

Go to the What Are Laws assignment in Canvas and tell me three things.

  1. What steps does it take to get a bill into law?
  2. Who represents you in the House and Senate in Washington D.C.? (Make sure to indicate where you live.)
  3. Who represents you in the Washington State House and Senate in Olympia?