BLW Chapter 1 Notes - Professor: Frank Perez PDF

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Professor: Frank Perez...

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Chapter 1: Introduction to Law 1. Definition of law a. Enforceable rules governing relationships among individuals and between individuals & their society b. Classifications: i.

Primary sources- establish the law 1. Examples: a. State and federal constitutional law b. ordinances/statutes c. State and federal agency law

ii.

Secondary sources- summarize & clarify the primary sources 1. Examples: a. Scholarly articles b. Law review journals c. Restatements of the law

2. The Common Law a. American law is based largely on English common law i. ii.

Opinions written by judges 2 court systems: 1. Courts of law a. Provided remedies such as monetary awards i.

Land

ii.

Money

iii.

Things of value

2. Courts of equity a. Provide remedies when courts of law could not b. Looks for fairness

iii.

i.

Injunctions

ii.

Recession

iii.

Specific performance

American courts do not separate between the 2 courts 1. One court can hear the case and provide a remedy

3. Equitable Maxims a. Whoever seeks equity must do equity i.

Treat others fairly

b. Where there is equal equity, the law must prevail i.

The law will determine the outcome

c. One seeking the aid of an equity court must come to the court with clean hands i.

Must have acted fairly and honestly

d. Equity will not suffer a wrong to be without a remedy i.

Equitable relief will be awarded when there is no legal remedy

e. Equity regards substance rather than form i.

Fairness and justice are more important than legal technicalities

f. Equity aids the vigilant, not those who rest on their rights i.

Neglect their rights for an unreasonable period of time

4. Common Law a. Stare decisis- “let the decision stand “ i.

2 aspects: 1. A court should not overturn its own precedent unless there is a compelling reason to do so 2. Decisions made by a higher court are binding on lower courts

b. Binding authority- any source of law a court m  ust follow when deciding a case i.

Ex: constitutions, statutes, and regulations

c. Controlling precedent- a binding authority that requires a court to follow prior court decisions in its jurisdiction i.

Ex: US Supreme Court

d. Persuasive authority- any primary/secondary source of law that a court may consult for guidance but that is not binding on the court i.

Examples: 1. Precedents from other jurisdictions 2. Unpublished opinions

ii.

Used in cases of first impression 1. Those that have no precedent 2. A prior judicial decision is a binding precedent only when the subsequent court is applying the same law as the prior court

iii.

The highest court in a jurisdiction can depart from precedent if it decides that: 1. The precedent is incorrect 2. technological/social changes have rendered the precedent inapplicable

e. Common law governs transactions not covered by statutory law i.

Courts interpret statutes and regulations

ii.

Judges interpret & apply the law but do not make them

iii.

Rulings can impact how legislatures revise laws

f. Restatements of the law- compilations that generally summarize the common law rules followed by most states i.

Cover the areas of: 1. Contracts 2. Torts 3. Agency 4. Trusts 5. Property 6. Restitution 7. Security 8. Judgments 9. Conflict of laws

ii.

The American Law Institute (ALI) publishes restatements

5. Schools of Legal Thoughts a. Natural law school i. ii.

A higher/universal law exists that applies to all humans Written laws should reflect the principles inherent in natural law

b. Positivist School i.

There is no law higher than the laws created by the national govt.

ii.

Laws must be obeyed to prevent anarchy, even if they are unjust

iii.

Legal positivism is the basis for national law

c. Historical School i.

Emphasizes the evolutionary process of law

ii.

History & origins of the legal system

iii.

Standards that have withstood the test of time 1. Where law derives its legitimacy & authority

d. Legal Realism i.

Law is shaped by social forces & needs

ii.

Judges account for economic & social realities when deciding cases

iii.

Influenced the growth of the Sociological School 1. Views law as a tool to promote social justice

6. Classifications of Law a. Substantive vs. Procedural

i.

Substantive law- consists of all laws that define, describe, regulate, and create legal rights and obligations

ii.

Procedural law- consists of all laws that outline the methods of enforcing the rights established by the substantive

b. Civil vs. Criminal i.

Civil law- spells out the rights and duties that exist between persons & their governments and the relief available when a person’s rights are violated 1. Found liable or not liable

ii.

Criminal law- concerned w/ wrongs committed against the public as a whole 1. Prohibited by local, state, or federal govt. statutes 2. Found guilty or not guilty

7. How to find primary sources of law a. Citation- a reference to a publication in which a legal authority can be found b. Most laws are referenced by their codified form - the form in which they appear in the federal & state codes - and are compiled by subject c. Uncodified state statutes are collected in state publications d. Codified statutes passed by a state legislature are typically reported by subject in that state’s code e. Rules & regulations from federal administrative agencies appear first in the Federal Register

i.

Eventually incorporated into the Code of Federal Regulations

8. Case Law a. 2 types of court: i. ii.

Federal courts State courts

b. Trial courts- evidence is presented & testimony is given i.

Decisions can be appealed to a higher court 1. Typically an appellate court 2. Appellate court decisions can be appealed to an even higher court a. State supreme court or the US Supreme Court

ii.

State trial court decisions are typically filed in the office of the clerk of the court 1. Available for public inspection 2. Written decisions of the appellate courts are available in print & online 3. The official reported appellate decisions are published in volumes called reports/reporters that are published by each state 4. Unofficial reports are published by non government entities

iii.

Regional reporters- state court opinions appear in regional units of the West’s National Reporter System

iv.

Federal district trial court decisions are unofficially published in the Federal Supplement

v.

Opinions from the circuit courts of appeals are unofficially reported in the Federal Reporter

vi.

The Bankruptcy Reporter r eports bankruptcy decisions from all federal courts

vii.

All opinions of the US Supreme Court are published in United States Reports b y the federal government

viii.

Unofficial reports of Supreme Court decisions can be found in the Supreme Court Reporter a nd the United States Reports: Lawyers Edition

9. How to read & understand case law a. Federal court system: i.

US District Courts- Trial 1. Federal supplement (“F. Supp.” or “F. Supp. 2d.”

ii.

US Courts of Appeal 1. Federal Reporter (F., F.2d, or F.3d)

iii.

US Supreme Court 1. United States Reporter (U.S.) 2. Supreme Court Reporter (“S. Ct.”) 3. United States Reports: Lawyers Edition 4. (“L. Ed.” & “L. Ed. 2d”).

10. Case Law Terminology a. Plaintiff/petitioner- the party who initiates a lawsuit b. Defendant/Respondent- the party against whom the lawsuit is brought

c. Appellant/Petitioner- the party who takes an appeal from one court to another d. Appellee/Respondent- the party against whom an appeal is taken e. Damages- a monetary award sought as a remedy for a breach of contract or a tortious act f. Statute of Limitations- sets the maximum time period during which a certain action can be brought or certain rights enforced g. Laches- equitable equivalent to statute of limitations. Claims must be brought within “reasonable time” h. Judge/Justice- designations given to judges in various courts i. Opinion- the court’s reasons for its decision, the rules of law that apply, and the judgment j. Unanimous opinion- an opinion that represents the views of all judges who heard a case k. Majority opinion- represents the views of more than half of the judges deciding the case l. Concurring opinion- a court opinion by one or more judges who agree w/ the majority opinion but not the legal reasoning behind the opinion m. Dissenting opinion- an opinion by one or more judges who disagree w/ the majority’s opinion n. Plurality opinion- an opinion that has the support of the largest number of judges but less than the majority...