Chapter 1 The Nature of Law Types and Classifications of Law Constitutions Two general functions o Set up the structure of the government for the political unit they control involves creating branches and subdivisions of the government and stating the powers given and denied to each Separation of powers the US Constitution establishes a Congress and gives it power to legislate make law in certain areas provies for a chief executive the president whose function is the enforce law creates a federal judiciary to interpret laws US Constitution structures the relationship between federal gov and states respects the principle of federalism by recognizing states power to make law in certain areas o Prevents other units of government from taking certain actions or passing certain laws Ex Bill of Rights Statues Common Law Laws created by elected representatives in Congress or a state legislature Stated in an authoritative form in statute books or codes Uniform acts model statutes drafted by private bodies of lawyers scholars they do not become law until they are enacted by a legislature Their aim is to produce state by state uniformity on the subjects they address o Ex Uniform Commercial Code Revised Uniform Partnership Act Revised Model Business Corporation Act Also called judge made law or case law Law made and applied to judges as they decide cases not governed by statues or other types of law Exists only at the state level but both state and federal courts apply it Originated in England judges started to follow other judges precedents Common law is adaptive and sometimes becomes codified enacted into statute Case law reasoning courts engage when they make and apply common law rules 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 Reformation the court rewrites the contract s terms to reflect the parties real Rescission a cancellation of a contract in which the partiers are returned to their Nearly all states have abolished separate equity courts and have enabled courts to precontractual position grant whatever relief is appropriate Equity contract intentions Administrative Regulations and Decisions Administrative agencies obtain the ability to make law through a delegation or grant of power from the legislature Agencies are normally created by a statue that specifies the areas in which they agency can make law and the scope of its power in each area Two types of law are made by administrative agencies o Administrative regulations o Agency decisions Appear in a precise form in one authoritative source Agencies are not elected bodies however they have an internal court like structure that enables them to hear cases arising under statues and regulations they enforce Agency decisions are legally binding appeals to the judicial system are sometimes allowed Treaties US Constitution gives the power to the president to make treaties with foreign governments Must be approved by 2 3s of the US Senate Ordinances Ordinances the enactments of counties and municipalities Made by subordinate units of state governments o Ex school districts counties municipalities townships Limited power that allows officials like the president or a state s governor to issue Executive Orders laws Priority Rules 1 The US Constitution federal laws enacted pursuant to it and treaties are the supreme law of the land a Federal law defeats conflicting state law 2 Constitutions defeat other types of law within their domain a A state constitution defeats all other state laws inconsistent with it b The US Constitution defeats inconsistent laws of whatever type 3 When a treaty conflicts with a federal statue over a purely domestic matter the 4 measure that is later in time usually prevails In either state or the federal domain statues defeating conflicting laws that depend on a legislative delegation for their validity a Ex a state statue defeats an inconsistent state administrative regulation 5 Statues and any laws derived from them by delegation defeat inconsistent a Ex either a statue or an administrative regulation defeats a conflicting common law rules common law rule Classifications of Law Criminal and Civil Law committing a crime Criminal law the law under which the government prosecutes someone for Creates duties that are owed to the public as a whole Civil law mainly concerns obligations that private parties owe to each other Law applied when one private party sues another Substantive Law and Procedural Law Substantive law sets the rights and duties of people as they act in society Procedural law controls the behavior of government bodies mainly courts as they establish and enforce rules of substantive law Public law concerns the powers of the gov and the relations between gov and Public and Private Law private parties o Ex constitutional law administrative law criminal law Private law establishes a framework of legal rules that enables parties to set the rights and duties they owe each other o Ex rules of contract property agency Jurisprudence The philosophy of law also sometimes used to refer to the collected positive law of some jurisdiction Legal Positivism a school of jurisprudence define law as the command of a recognized political authority positivists see legal validity and moral validity as entirely separate some positivists believe every properly enacted positive law should be enforced and obeyed whether just or unjust Natural Law a school of jurisprudence rejects the positivist separation of law and morality believes laws need to be morally right or at least not bad American Legal Realism a school of jurisprudence legal realists regard the law in the books as less important than the law in action law in action the conduct of those who enforce and interpret the positive law American legal realism defines law as the behavior of public officials mainly judges as they deal with matters before the legal system Sociological Jurisprudence Sociological Jurisprudence a general label uniting several different approaches that examine law within its social context Law is a process of social ordering reflecting society s dominant interest and values Believe law should keep up with the times Other Schools of Jurisprudence Law and Economics examines legal rules through the lens provided by economic theory and analysis Critical Legal Studies CLS regards law as inevitably the product of
View Full Document
Unlocking...