Chapter 1 The Nature of Law Types and Classifications of Law The types of law o Constitutions exist at state and federal level Function 1 set up structure of gov for the political unit they control creating branches of the gov and stating the powers given Through separation of powers the US constitution established the Congress makes laws President enforces laws judiciary interprets laws US Constitution structures the relationship between the federal gov and the states federalism recognizes the states power to make law in certain areas Function 2 prevent other units of gov from taking certain actions passing certain laws ex Bill of Rights o Statutes are laws created by elected representatives in Congress or a state legislature Uniform acts are model statutes drafted by private bodies of lawyers and scholars they do not become law until a legislature enacts them aim is to produce state by state uniformity on the subjects they address o Common law aka judgemade law case law is law made and applied by judges as they decide cases not governed by statutes or other types of law Only exists at state level but state and federal courts apply it Precedents judges follow the decisions of other judges in similar cases state decisis let the decision stand Codified enacted into statute Restatements collections of common law rules covering various areas of the law they are not actual law and therefore do not bind courts often found persuasive and adopted as common law within states Common law fills in gaps left by other legal rules Case law reasoning courts engage when they make and apply common law rules o Equity equity courts concern itself with accomplishing rough justice when common law rules would produce unfair results Also provide some remedies not available in the common law courts Injunction a court order forbidding a party to do some act or commanding him to perform some act Specific performance a party is ordered to perform according to the terms of her contract Priority Rules Reformation the court rewrites the contract s terms to reflect the parties real intentions Rescission a cancellation of a contract and a return of the parties to their pre contractual position Most equity courts have been abolished most common law courts can give any of the remedies whether money or one discussed above o Administrative agencies established by Congress and state legislatures obtain the ability to make law through a delegation or grant of power from the legislature Administrative regulations appear in a precise form in one authoritative source different from statutes bc the body enacting the regulations is not an elected body Agency decisions outcome from the agencies internal court like structure legally binding decisions o Treaties made by the President approved by 2 3 of Senate become the supreme law of the land can invalidate inconsistent state and federal laws o Ordinances the enactment of counties and municipalities o Executive orders o Federal supremacy US Constitution federal laws treaties defeat conflicting state laws o Constitution defeat other types of law within their domain state constitution defeats other state laws o When a treaty conflicts with a federal statute over a domestic matter the measure that is later is time usually prevails o Statutes defeat laws that depend on a legislative delegation for their validity statute over administrative regulation o Statutes and any laws derived from them by delegation defeat o Criminal law is the law under which the gov prosecutes someone for committing a crime criminal penalties imprisonment or fines o Civil law mainly concerns obligations that private parties owe to each other civil remedies money damages equitable relief o Substantive law sets the rights and duties of people as they act in society a statute making murder a crime o Procedural law controls the behavior of gov bodies mainly courts as they establish and enforce rules of substantive law the proper conduct of a trial o Public law concerns the powers of government and the relations between government and private parties constitutional administrative criminal law inconsistent common law rules Classifications of Law o Private law establishes a framework of legal rules that enables parties to set the rights and duties they owe each other rules of contract property and agency Jurisprudence Jurisprudence a field that seeks to provide a general description of the law has different schools of jurisprudence o Various types of law sometimes are called positive law positive law comprises the rules that have been laid down by a recognized political authority o Legal positivism define law as the command of a recognized political authority just and unjust laws are accepted o Natural law takes issue with legal positivism by rejecting the positivist separation of law and morality believe there is some higher law set of universal moral rules unjust positive laws are not valid o American legal realism regard the law in the books as less important than the law in action the conduct of those that enforce and interpret the positive law law is the behavior of public officials judges as they deal with matters before the legal system o Sociological jurisprudence is a general label uniting several different approaches that examine law within its social context Law must change to meet changing social conditions and values The Functions of Law Instrumentalist attitude willingness to adapt the law to further the social good but legal instability and uncertainty General social functions of the law o Peace keeping o Checking government power and promotional personal freedom o Facilitating planning and the realization of reasonable expectations o Promoting economic growth through free competition o Promoting social justice o Protecting the environment Legal Reasoning Legal reasoning deductive syllogistic o Legal rule is the major premise the facts are the minor premise and the result is the product of combining the two Case law reasoning when a precedent has been properly distinguished the common law rule it stated does not control the present case the court deciding the present case may then make a new common law rule to govern the case Statutory interpretation to deal with ambiguous statutory laws courts use various techniques of statutory interpretation o Plain meaning if the statute s words have a clear common accepted meaning courts employ the plain meaning rule use the actual meaning of the words o
View Full Document
Unlocking...