Transcript Chapter 1
Chapter 1
Introduction
Law is a set of guidelines that help maintain order in a society A civilized society is one that no longer settles private disputes through private violence
I. Legal Philosophies
Natural Law Legal Positivism Legal Realism
A. Natural Law
Right or Wrong Belief that there are universal laws guided by a moral reasoning that enable all to know the difference between right and wrong
B. Positive Law
Ruling Authority A just law is one created by the sovereign, or ruling authority A positivist believes that there is no unjust law if it was enacted by the recognized political authority
C. Legal Realism
Decision Maker’s Discretion Concerned with results Recognizes that lawmakers are influenced by many factors, and that these influences affect the decision being made
II. Four Sources of Law
Constitutions Statutory Law Common Law and Judicial Decisions
Administrative Law
A. Constitutions
U.S. Constitution has been supreme law of the land since 1787 All federal and state laws must be consistent with the Constitution to be enforced The first three Articles of the U.S. Constitution establish the basic structure of the federal government
Article I -
Creates the congress Senate and House of Representatives Vests the congress with legislative power
Article II -
Establishes the presidency and its duties
Article III -
Creates the judiciary Each branch is responsible for a different governmental duty Separation of powers between branches serves as a check and balance
Separation stabilizes our government
B. Statutory Law - Codes
Legislative branch provides statutory law
Each year legislatures add to their statutory laws of their state These statutes are placed in codes that are compilations of statutes When a law has been placed into one of the existing codes, that law has been
CODIFIED
California has 29 Codes
Sections within the California Codes made be referred to by the symbol “ § “, or the word “Section.”
Uniform Commercial Code
As modern society becomes more complex, uniform statutory laws throughout the states have become a necessity The American Law Institute and the National Conference of Commissions on Uniform State Laws recommend laws where uniformity would be a benefit The
UNIFORM COMMERCIAL CODE
involved in commercial transactions (UCC) addresses topics of law Sales law Commercial paper Secured transactions in personal property Statutory laws that occur at local levels are called
ORDINANCES
Dog leash laws Laws dealing with signs Land use zoning laws
C. Common Law and Judicial Decisions
Common law’s origins date back to early English history with appointing “judges” to act on behalf of the sovereign when resolving disputes
COMMON LAW
on court decisions, customs, and usage in the community rather than codified law is a general body of law that began in England based Many of today’s legal principles had their origins in the common law
Contract law
Tort law Agency law
Common law is “judge-made”; it is considered unwritten law, while statutory law is written
Judicial Decisions
In the United States,
JUDICIAL DECISIONS (case law)
are produced when a judge decides a case and announces the reasoning behind the ruling
Previous court decisions have become “precedent” for deciding future cases
The legal principle governing precedent is called
STARE DECISIS
which provides a degree of certainty and stability to society and makes the laws predictable Precedents are to be used when the facts of a case is similar to the precedent case
Judicial Decisions
(cont.)
One limitation under Article II of the U.S. Constitution states that there must be a “case in controversy” before the legal issue may be considered…a judge is not able to call a dispute into his courtroom for resolution Decisions rendered by appellate judges are published in a set of books called
REPORTERS
RESTATEMENTS
are published by the American Law Institute which provide coverage of the common law areas such as torts, contracts, agency and property
1. Judicial Stability and Judicial Flexibility
Requiring courts to follow precedent leads to judicial stability When precedent cannot be found to help resolve an existing dispute, the court will try to use a similar previous decision as a basis for logical or rational application to resolve the current dispute “Where the reason is the same, the rule should be the same.” Judicial flexibility helps when substantial justice might require that the court ignore or bend the precedent in order to reach a proper or just result
D. Administrative Law
Administrative law was created by necessity in order to have a more proactive mechanism for regulating business activities The
ADMINSTRATIVE AGENCY
, as part of the executive branch, appeared as Congress realized that there was a need for more specialized oversight of various society functions
EXECUTIVE ORDERS,
when issued by the president, governor, or head of a local government, are another type of law issued by the executive branch as a means of enforcing existing laws
INTERNATIONAL TREATIES
federal executive branch
Executory
are another type of law created by the
Self-Executing
Foreign Corrupt Practices Act 1977
(1988)
Makes it a crime when an officer, director, employee, agent, or a stockholder acting on behalf of the business uses the mail or any means of interstate commerce to offer to pay, or actually pay, anything of value to a foreign official, foreign political party official, or foreign political candidate, when that payment is meant to influence that official in order to obtain or retain business for the U.S. company Willful violations of the FCPA $2,000,000 fines for business $100,000 fines for individuals and imprisonment up to 5 yrs
III. Classifications of Law
Substantive or procedural Public or private Civil or criminal
A. Substantive vs. Procedural
Substantive laws affect individuals by either granting them legal rights or imposing legal duties on them Laws that prohibit the possession of illegal substances are
SUBSTANTIVE
in nature, since they impose a duty on individuals to not possess those illegal substances.
PROCEDURAL LAWS
enforce the rights or duties granted by the substantive laws by imposing a structure that must be followed when establishing or enforcing substantive laws
RULES OF CIVIL PROCEDURE RULES OF EVIDENCE
B. Private or Public
The body of law governing interaction between individuals is considered
PRIVATE LAW
PUBLIC LAW
deals with how the government is organized and how it interacts with the people of the country
C. Civil or Criminal
CIVIL LAW
is concerned with how individuals interact with each other
CRIMINAL LAW
is concerned with behavior that is considered unacceptable to society at large
D. Law vs. Equity
When a person is seeking monetary damages, he is seeking a
LEGAL REMEDY
A
REMEDY IN EQUITY
attempts to create fairness and justice for a person who has been harmed and money damages are not sufficient
SPECIFIC PERFORMANCE RESCISSION INJUNCTION REFORMATION RESTITUTION
IV. Role of Attorneys in the Legal Process
Finding an Attorney Fee Arrangement
A. Finding An Attorney
Recommendations from family and friends
State Bar-certified lawyer referral services Yellow Pages Local Bar Association
B. Fee Arrangement
CONTINGENCY FEE AGREEMENTS –
the attorney agrees to take a percentage of the money you win in a lawsuit Must be in writing and state the percentage agreed to Agreement should contain a statement of the general nature of the legal services provided to the client
NON-CONTINGENCY AGREEMENTS –
fees, or a retainer use hourly fees, fixed
FEE DISPUTES
Switch attorneys and have files sent over Try fee arbitration Report attorney to State Bar Association Sue your former attorney
V. Briefing a Case
Reading and Briefing a Case
Locate the
NAME OF THE CASE
it, e.g.
and where to locate
Li v. Yellow Cab Company of California
55 Cal.3d 804,532 P.2d 1226, 119 Cal.Rptr. 858 (1975)
FACTS - summarize the facts of the case
ISSUES - determine the issues present in the case
DECISION the court’s ruling
REASONING analyzed the court’s reasoning is then
Chapter Summary
Legal Philosophies
Natural Law Positive Law Legal Realism
Classifications of Law
Substantive vs. Procedural Private or Public Civil or Criminal Law vs. Equity
Sources of Law
Constitutions Statutory Law Common Law & Judicial Decisions Administrative Law
Role of Attorneys in the Legal Process
Finding An Attorney Fee Arrangement
Briefing a Case