OUR LAWSOUR LAWS

Chapter 1Chapter 1

Evolution of LawEvolution of Law

Take revenge for wrongsTake revenge for wrongs

Award money or goods instead of Award money or goods instead of revengerevenge

Court systems are formedCourt systems are formed

Laws established to prevent and Laws established to prevent and punish wrongs.punish wrongs.

Bonita and Tomas were arguing. Bonita Bonita and Tomas were arguing. Bonita believed that the legal system in the believed that the legal system in the US was designed primarily to provide US was designed primarily to provide justice. Tomas maintained that the justice. Tomas maintained that the system was devoted to providing system was devoted to providing impartial courts in which wrongs impartial courts in which wrongs between parties could be heard and between parties could be heard and resolved without resort to personal resolved without resort to personal revenge. Who do you think is correct?revenge. Who do you think is correct?

GOAL: Provide a peaceful alternative to revengeWhy is “justice” not the goal?

“…“…laws should be both laws should be both predictablepredictable and and flexibleflexible.”.”

Law based on the current Law based on the current standards or customs of the standards or customs of the peoplepeople

Case-based system Case-based system Characterized by evolutionary Characterized by evolutionary

growth and change; working growth and change; working within the constraints of the within the constraints of the ConstitutionConstitution

•Law dictated from above

Common Law v. v. Civil Code

Rely on precedent Rely on precedent (courts use prior cases as (courts use prior cases as a guide for deciding a guide for deciding similar new cases)similar new cases)

Jury system Jury system characteristiccharacteristic

Criminal law is Criminal law is accusatorialaccusatorial

Courts are generally Courts are generally required to exclude required to exclude significant evidencesignificant evidence

Rely on judicial decision-Rely on judicial decision-making and proposed making and proposed law (driven by judges law (driven by judges and legislatures.and legislatures.

Jury system not Jury system not characterisitccharacterisitc

Criminal law more Criminal law more inquisitionalinquisitional

Evidence normally Evidence normally excluded in a common excluded in a common law court would be law court would be included in a civil law included in a civil law courtcourt

Advantages to Common LawAdvantages to Common Law

Judicial process repeated over and overJudicial process repeated over and over

Custom-based common law developed

Had to wait for harm to actually Had to wait for harm to actually occuroccur

““dead hand of the past rules the dead hand of the past rules the present to the public detriment”present to the public detriment”

““precedent breaking down under the breaking down under the stress of …social reform efforts to stress of …social reform efforts to make society more (equal) and more make society more (equal) and more strictly subject to majority rule”strictly subject to majority rule”

Disadvantages to Disadvantages to precedentprecedent in in Common LawCommon Law

PrecedentPrecedent

Courts use prior cases as a guide for Courts use prior cases as a guide for deciding similar new cases.deciding similar new cases.

EQUITY: EQUITY: an alternative to common lawan alternative to common law

PROBLEM with Common Law … courts limited to PROBLEM with Common Law … courts limited to granting the remedy of money damages = wait granting the remedy of money damages = wait until harm occursuntil harm occurs

Couldn’t

Chancellor (clergyman) – equity court

•No jury

OPTIONS:

Injunction – prohibit

Decree – to compel to do something

Writs - command* Could not stop harm if you were not a noble

Sources of LawSources of Law

ConstitutionConstitutionStatutesStatutesCase LawCase LawAdministrative AgenciesAdministrative Agencies

ConstitutionConstitution

Framework of government/”supreme Framework of government/”supreme law of land” law of land” (see p10 WYV) (see p10 WYV) How do we How do we change the Constitution?change the Constitution?

Allocates PowersAllocates PowersPeople and GovernmentPeople and GovernmentFederal and State GovernmentsFederal and State GovernmentsAmong branches of governmentAmong branches of government

Defines relationship to peopleDefines relationship to people

StatutesStatutes

Enacted by federal (Congress) and Enacted by federal (Congress) and state legislatorsstate legislators

Legislative (branch) enacted lawsLegislative (branch) enacted lawsLocally enacted laws = Locally enacted laws = ordinanceordinance

Case LawCase Law Created through the judicial branchCreated through the judicial branch Three ways it is established:Three ways it is established:

Common Law tradition (created through appeal by judges Common Law tradition (created through appeal by judges opinions/precedent)opinions/precedent)

Interpreting statutes Interpreting statutes

Judicial review (to review laws/statutes to determine whether or Judicial review (to review laws/statutes to determine whether or not they conform to the Constitution) not they conform to the Constitution) (see Marbury v. (see Marbury v. Madisonvideo)Madisonvideo)

Based on “stare decisis”:Based on “stare decisis”: ““to adhere to decided cases”to adhere to decided cases”

““let the decision stand”let the decision stand”

Lower courts must follow in similar casesLower courts must follow in similar cases

Does not bind Supreme Courts (see P10 In This Case)Does not bind Supreme Courts (see P10 In This Case)

Administrative AgenciesAdministrative Agencies

Controlled by the executive branchControlled by the executive branchCreated to carry out laws that deal Created to carry out laws that deal

with extensive knowledge and detailwith extensive knowledge and detailExamples:Examples:

Social Security Social Security IRSIRSDepartment of Motor VehiclesDepartment of Motor VehiclesZoning CommissionZoning Commission