Legal Themes Defined
Section 1. Introduction to Legal Themes
The application of the law is split into many different fields, from common practices gathered from repetition, to regulations and statutes, case law, and other legal codes that govern our society. No matter what the regulation, however, there’s a theme that encompasses its legal practice and application, and this is also true of any set of circumstances defined by the law. By extending the law in this way, we can ensure that not only are all circumstances accounted for expressly, but also that unforeseen situations are able to be considered within context . Taking your broad generalizations into the realm of themes is therefore crucial to account for edge cases and niche situations that can otherwise result in a gray area of the law. Of course, what a legal concept is or isn’t considered to be is highly subjective. Some lawyers simply consider the wording of the law as the be-all-end-all of the legal situation, while others will take it upon themselves to define the concepts more broadly. How broadly or narrowly you apply the law depends entirely on the type of litigation you’re trying to do, and a good lawyer will be able to adjust these definitions fluidly in order to interpret the law correctly.
Historical Perspective on Legal Themes
Embarking on a discussion of key legal themes invites scrutiny of the historical development of these ideas. For example, it is no coincidence that the judicial system of the United States initially drew heavily from English common law. The Founding Fathers were well versed in English jurisprudence, and they maintained these strands while also weaving in principles from other inspirations, such as Enlightenment philosophy and French legal systems. The American Revolution provided an opportunity to alter the course of judicial practices in America, but the reality is that many established elements of English law provided a strong foundation for the framers of the United States Constitution. In fact, much of the major political philosophy that helped to build the nation was imported from Great Britain.
Past practices did not totally dictate the course of modern jurisprudence in the United States. For instance, the application of individual state laws, such as appellate procedure, encouraged ongoing development of the philosophy of the law. State courts began to adapt new approaches based on thought and practice of their own. Perhaps slightly less important, but equally interesting is the lessened influence of English law on modern American jurisprudence. While the United States Supreme Court occasionally refers to English law regarding federal constitutional questions, this source is only adjunctive with other sources, such as supreme court decisions, statutes, and consistent judicial practices.
Although use of English law is infrequent, it is undeniably important for another reason. Whereas Great Britain has a unitary system for decision making in all matters of law, the United States is governed on a federal basis with a separation of powers. Different levels of government have their own legislative, executive, and judicial branches in the United States. The creation of a third co-equal branch of government was a departure from English law, which had no concept of judicial review of legislative and executive action. Today, every state must have an independent judicial system free of influence from the legislative and executive branches. But this idea is only recent.
Common Constitutional Law Themes
When embarking on a study of constitutional law, we find ourselves faced with certain common themes that transcend specific cases. Many of these themes can be found in the separation of powers, rule of law, human rights, or even pre-Confederation constitutions. In its most basic terms, the separation of powers is a doctrine of the Constitution that underpins the architecture of the division of responsibilities and powers among the different branches of government. More specifically, modern jurisprudence explains the doctrine as requiring that the core entrenchment provisions be separated among the different levels of government; any resulting overlap is for the benefit of an enhanced protection of the Constitution.
In constitutional law, the rule of law has a more specific definition: certainty in the law. The rule of law is also used in jurisprudence to describe the categories of institutionalized processes of a legal system. For example, the core rule of law components are independent adjudications, accessibility to justice, reasonable administration of justice, where the system is free from bias, etc.
With human rights jurisprudence, the concepts underpinning the various Charter’s and related documents evolve over time. At its core, the theme is a succinct statement regarding what fundamental freedoms citizens of a democracy should be entitled to. The evolution of the Charter and its provisions have been largely based on its applicability as the legal basis for protecting individuals against wrongful interference by the state.
Criminal Law Themes
Due process is one of the most important legal themes in modern jurisprudence. According to which legal scholar you are speaking with, due process is understood in various ways. In some interpretations, it refers to the right to an unbiased tribunal, while in others it is specifically the right not to be imprisoned without a fair trial.
The presumption of innocence, along with the burden of proof, are part of due process in a much more specific way. The presumption of innocence is the concept that no person can be presumed guilty. If the presumption of innocence is the law, then any arrest must have been made with either a warrant or probable cause. While there are many exceptions to probable cause, probable cause is frequently used to validate an arrest made without a warrant. The presumption of innocence, however, is rarely broken.
If you violate the presumption of innocence, you will violate a very important legal theme. The exceptions to the presumption of innocence are that either you were arrested with a warrant, or that there was probable cause for the arrest.
That said, there are various ways that an arrest can still be legitimate despite having been made without a warrant or probable cause.
The other major legal themes in modern jurisprudence relates to new dangers and dangers that the law cannot prevent. For example, modern jurisprudence recognizes that public safety is a legal theme in and of itself. There are legal concepts in any number of disciplines, such as tort and even trademark, in which public safety is the entire concern of the law. It is important to understand public safety when discussing operable law.
However, public safety is also increasingly seen as a possible curtailment of individual rights, and therein lies the basic legal theme of criminal jurisprudence. Public safety and individual rights are often at odds with each other, and when they are not, it is because the rights of the individual are in themselves wrapped up in public safety. Obviously, this may be the case in many situations.
Intellectual Property Themes
A prominent theme in intellectual property jurisprudence is that the law should protect and encourage innovation. Most people are aware of the patent, copyright and trademark systems as a means to safeguard actually- or potentially- valuable information, but the philosophical and legal underpinnings to those systems are more complex than one might expect.
Consider that in many intellectual property cases, a party’s rights hinge not on what information they created, but when they created it. This temporal focus on intellectual property rights relates back to the utilitarian theory of intellectual property jurisprudence: information should be protected to the extent that any social "good" (such as long-term citizen benefits or an immediate economic benefit) is gained that wouldn’t have existed otherwise.
This utilitarian theory drives many of the concepts of intellectual property law, such as the limited duration of copyrights and patents (both of which influence the duration of their respective protections) and the concept of "fair use" for copyright holders, among others .
Along with the utilitarian theory comes a natural tension: how to best balance the rights of the public and the rights of the private into a workable legal structure. In the world of intellectual property jurisprudence this "balance" often comes in the form of recognizing barriers to entry (such as), the usefulness of an intellectual property right’s protected material (such as a trademark), and the risk that a person can be identified with a natural imbalance in power against that person.
These concepts require an understanding of the larger social context in which the intellectual property right exists. For example, imagine if the algorithms that power Internet search results weren’t protected by trade secrets laws; there would be little incentive for a large company to invest in its own research and development and instead simply "reverse engineer" (or hack) its competitor’s algorithms.
The Internet is littered with intellectual property law disputes that all circumnavigate around the same basic theme: how best to balance private innovation and monopolies in protected information with the public’s needs to understand and access protected information.
Emerging Themes in Global Law
Emerging themes in international law include an increased focus on globalization and international human rights, as well as the role of international organizations in the enforcement of international norms. The emergence of globalization has made it so that more and more aspects of life cannot realistically be regulated from the jurisprudential perspective of one country alone. This has both resulted in an increased focus on global human rights norms that transcend the sovereign state and its citizens, as well as an increased focus on the sovereignty of states in regard to those same norms. An African nation, for example, may be able to regulate the use of natural resources within its own borders, but the control of these resources in connection with other nations (such as by trade) cannot feasibly be regulated by Swiss law.
The effort to balance the enforcement of human rights with claims to sovereignty is reflected in the goals of modern international organizations, whose main goal it is to extend the benefits of globalization correlated with industrialization. Such organizations are the United Nations and, more narrowly focused, the International Criminal Court. International organizations are generally seen as legitimizing intervention into the internal affairs of other countries by focusing on human rights issues and generally adopting the point of view of those affected rather than the states or leaders promoting their own interests at the expense of others.
Similar concerns are echoed in the traditional subject matter of international law: interstate relations. For example, the law of the sea has evolved to encompass growing concerns about overfishing, pollution, and the increasing commercialization of resources that were traditionally left to common use. This means that nations that overexploited the resources of the sea in the past have to take global responsibility for their actions and ensure that burdens are not shifted to other nations.
Impact of Technology on Legal Themes
Advancements in technology have played a catalytic role in the evolution and mutations of modern legal themes in the digital era, stirring up the judicial mixing pot of concepts and case law. In particular, the emergence of the internet and innovations in communication, storage, and transfer of information have led to a significant push by courts and legislatures worldwide to adapt these fundamental corners of legal doctrine to a contemporary reality and bridge the gap between historical and modern legal principles.
For example, privacy laws had remained historically limited to property-related entitlements. The landmark 1978 case of Katz v. United States, 389 US 347, 360 (1967), which recognized an individual’s "reasonable expectation of privacy" when using a public telephone booth, nonetheless only applied to tangible property. Yet, as technology evolved to collect, store, and transmit data in ever-more sophisticated digital forms, such as electronic location tracking and the online sale of goods and services, the need arose for courts to revise the longstanding property conceptualization of privacy rights. In 2012, the United States Supreme Court decided United States v. Jones, 565 US 400 (2012), in which it applied the newly-created third-party doctrine of privacy law in analyzing the constitutionality of government law enforcement authorities’ use of GPS tracking devices that continually record the location of an individual’s vehicle without a warrant.
This is not an isolated incident of legal evolution to catch up with technological advancement, not by a long shot. The protection of intellectual property has similarly morphed over the last few decades around newly invented cultural creations. In a widely cited 1998 article, Copyright in Cyberspace, 24 Colum. J.L. & Arts 243 (1998), Lawrence Lessig warns that "it [is] unreasonable to expect human creativity to flip off at the edge of the digital divide." As such, Congress answered Lessig’s call just one year later, enacting the Digital Millennium Copyright Act of 1998 ("DMCA"). Through the DMCA, Congress facilitated the classic intellectual property precept of "safe harbors" for public disseminators of content, while simultaneously incentivizing the internet service providers ("ISPs") most responsible for protecting the rights of copyright holders — on pain of fines and legal troubles — and providing a uniform process for copyright holders to send notices to ISPs to take down infringing content. In this way, doctrines developed to protect intellectual property from historic concerns over its infringement, such as fair use of copyrighted materials and statutory limitations, were reincarnated to fit new contexts within the digital sphere.
Cybersecurity, perhaps the greatest bugaboo of our time, has also been subject to the legislative mend of 21st century jurisprudence. In 2015, the United States enacted the Cybersecurity Information Sharing Act (CISA) in order to cajole tech companies and ISPs to share information on cybersecurity threats. CIPA was meant to address increasing worry over the proliferation of cyberattacks, but legislative scholars Derek Bambauer and Margaret Hu argue that the law imperils cybersecurity efforts more than it protects them. Fundamental to their argument is what they call a "trade-off . . . between security and privacy." 89 Ind. L.J. 505, 517 (2014). And indeed, another example of the tension between privacy and security can be found in the ongoing Apple/FBI controversy over whether the tech company should help the FBI unscramble the iPhone of the San Bernardino shooter.
The connection between technological change and the evolution of legal doctrines, whether in intellectual property, digital privacy, cybersecurity, or other arenas, is important to understand. And it will continue to be a matter of paramount concern to New York judges, legislators, and lawyers for the foreseeable future.
Themes for Tomorrow of the Law
As we look to the future, most foresee a continued evolution of legal themes, shaped by both longitudinal approaches to theme mapping and real-time data approaches, taking into account current trends, global challenges, and the potential for future societal changes . As new issues arise, whether from the effects of artificial intelligence, immigration challenges, income inequality, or political prognostications, key legal themes will continue to emerge that will guide our way through the tangled web of modern jurisprudence. Keeping abreast of these changes, especially with today’s fast-paced development of technology, will require practitioners to be more informed than ever.