Chapter 1: The Nature of Law

  1. The Types Of Law
  2. Constitutions
  3. Laws that determine the fundamental political principles of a government
  4. Used by both state and federal governments
  5. Have various functions
  6. Set up the structure of a government by creating branches and subdivisions and laying out the powers provided to each branch and subdivision
  7. Prevent other units of government from taking certain actions or passing certain laws (I.e., the Bill of Rights to the United States Constitution prohibits government action that restricts specific individual rights such as freedom of speech, freedom of association, etc.)
  8. Statutes
  9. Laws created by elected representatives in Congress or a statute legislature
  10. Some federal statutes include the Clean Water Act, the Federal First Offenders Act, and the Patriot Act
  11. Common Law: judge-made law
  12. If a case is not governed by a statute or other type of law, judges will apply case law or common law
  13. Stare decisis: the practice where judges follow the decisions of other judges (I.e., when deciding a case involving race discrimination, a judge might look to the U.S. Supreme Court case, Brown v. Board of Education, as a basis for its decision)
  14. Restatements
  15. Collections of common law (and sometimes statutes) that cover various areas of law
  16. Because they are created by the American Law Institute, and not judges, they are not binding on courts but do provide persuasive authority
  17. Equity
  18. A body of law focusing on fairness rather than rigid rules
  19. Equitable remedies include:
  20. Injunction: a court order forbidding or requiring a party to act
  21. Specific performance: an order requiring a party to perform as promised in a contract
  22. Reformation: a court rewriting of contract terms to reflect parties’ intentions
  23. Rescission: a cancellation of a contract, returning parties to the position they were in before their agreement
  24. Administrative Regulations and Decisions
  25. Laws created by administrative agencies such as the Environmental Protection Agency and U.S. Immigration and Customs Enforcement
  26. Congress gives the agencies the power to make laws through a delegation (or grant) of power
  27. Agencies make two types of law:
  28. Administrative regulations: laws published in one source such as the Code of Federal Regulations
  29. Agency decisions: statements from internal courtlike structures
  30. Treaties
  31. Agreements between the United States and foreign governments, such as the North American Free Trade Agreement or NAFTA
  32. Considered the “supreme law of the land” if made by the president and approved by two-thirds of the U.S. Senate
  33. Ordinances: enactments by counties (i.e., Ventura County, Los Angeles County, Orange County) and municipalities, such as zoning ordinances
  34. Executive Orders: laws issued by the President of the United States or a state governor
  35. Priority Rules: when different types of laws conflict, courts apply the following rules
  36. Federal supremacy: federal laws (Treaties, the U.S. Constitution, Federal Statutes) trump conflicting state laws
  37. The federal constitution trumps other federal laws and state constitutions trump other state laws
  38. When a treaty conflicts with a federal statute, the law enacted last will prevail
  39. Statutes trump administrative decisions and regulations
  40. Statutes and any laws derived from them trump inconsistent judge-made law
  41. Classifications of Law
  42. Criminal law (government prosecutes someone for committing a crime – I.e., California v. OJ Simpson) and civil law (obligations owed by private parties to one another – I.e., the lawsuit filed by the Brown and Goldman families against OJ Simpson for wrongful death)
  43. Substantive law (rights and duties of individuals in society) and procedural law (controls the behavior of courts and other government bodies)
  44. Public law (concerns government powers and relations with private parties) and private law (concerns rights and duties by parties owed to one another)
  45. Jurisprudence: legal philosophies
  46. Legal positivism
  47. Defines law as the command of a recognized political authority
  48. Views legal validity as separate from moral validity
  49. Natural law: contends that some higher law or set of universal moral rules binds all human beings
  50. American Legal Realism
  51. Defines the law as the behavior of public officials as they deal with matters before the legal system
  52. Feels that modern judges are social engineers who should weigh all relevant values and consider social science findings when deciding a case
  53. Sociological Jurisprudence
  54. A general labeling unit for several different approaches that look at law within the context of society
  55. Most schools are concerned only with the fact the moral values influence the law, but do not focus on the merit of moral values
  56. Other Schools of Jurisprudence
  57. Law and Economics Movement: examines legal rules by looking at economic theory and analysis
  58. Critical Legal Studies: usually regards law as the result of political calculations and the biases of lawmakers
  59. The Functions of Law
  60. Peacekeeping
  61. Checking government power and promoting personal freedom
  62. Facilitating planning
  63. Promoting economic growth
  64. Promoting social justice
  65. Protecting the environment
  66. Legal Reasoning
  67. Case Law Reasoning
  68. Stare decisis: Courts look to prior cases (known as precedents) for legal rules
  69. If a prior case is not similar enough to the case the judge is deciding, the judge can distinguish the prior case and then create a new law to govern the current case
  70. Statutory Interpretation
  71. If the statute’s words have a clear, common, accepted meaning, courts will often apply the statute according to the usual or plain meaning of the words
  72. Courts will refuse to follow the plain meaning, however, if legislative history (such as congressional hearings) reveal a contradictory intention or purpose
  73. Courts occasionally interpret statutes to reflect general public purposes
  74. Courts sometimes defer to prior cases and administrative decisions to interpret a statute
  75. Courts may apply maxims (general rules of thumb) to interpret statutes
  76. Limits on Court Power
  77. Respect of established precedents (prior cases) and the will of the legislature
  78. Fear of being overruled by a higher court
  79. Politics/Fear of being removed from office
  80. Requirement that parties present a real dispute, i.e., courts generally do not issue advisory opinions (decisions regarding abstract legal questions unrelated to an actual dispute)
  81. Parties must have standing to sue: a direct, tangible, and substantial stake in the result of the case
  82. However, state and federal declaratory judgment statutes allow parties to determine their rights and duties even though their dispute has not yet caused harm and required legal relief