BMGT380 CHAPTER 1 THE NATURE OF LAW TYPES OF LAW Statutes Civil Law laws created by elected representatives in Congress or a state legislature Written codes Used in Europe South America Mexico European conquered countries by legislators saying what the law is Common law what we use law made applied by judges through precedent Based on Stare Decisis doctrine let the decision stand not completely rigid in its requirements of adherence to precedent can evolve to meet changing social conditions o Like cases should be decided alike Restatements collections of common law rules covering various areas of the law are not law do not bind courts sometimes state courts adopt them as common laws rules within state Exist only at state level Examples rules of tort contract agency Equity body of law concerned with accomplishing rough justice when common law rules would produce unfair results Injunction a court order forbidding a party to do some act or commanding him to perform some act Specific performance party is ordered to perform according to the terms of her contract Flexible procedures favor of general moral maxims Reformation court rewrites the contracts terms to reflect the parties real intentions Rescission cancellation of a contract in which the parties are returned to their precontractual position Administrative agencies can make law through a delegation or grant of power from the legislature Two types of law made administrative regulations agency decisions Ordinances enactments of counties and municipalities exercise certain limited functions powers ex school districts CLASSIFICATION OF LAW 1 Criminal vs Civil 1 behavior can violate both Criminal crime is against state or country creates duties that are owed to the public as a whole State vs Smith or US vs Smith Actual victims are treated just as witnesses Beyond reasonable doubt Penalty imprisonment or fines Civil obligations that private parties owe to one another Smith vs Jones Applied when 1 private party sues another govt can be a party Acquittal of evidence Penalty money damages or equitable relief less intense 2 Substantive vs Procedural Substantive sets the rights and duties of people as they act in society Example statue making murder a crime Procedural controls the behavior of government bodies mainly courts as they establish and enforce rules of substantive law Example rules describing the proper conduct of a trial 3 Public vs Private Public concerns powers of govt and the relations between govt private parties Example constitutional law administrative law criminal law Private establishes framework of legal rules that enables parties to set the rights duties they owe each other Example rules of contract property and agency JURISPRUDENCE schools of jurisprudence each with its own distinctive view of law positive laws rules that have been laid down by a recognized political authority Legal Positivism Define law as the command of a recognized political authority Commands are valid law regardless of their good or bad content see legal validity and moral validity as entirely separate questions Positivist judges try to enforce law as written excluding their own moral views from the process Natural Law Positive law must resemble law of nature by being good or not being bad Contend that some higher law or set of universal moral rules binds all human beings Defense not recognized in court but judges may use when interpreting laws more likely to let morality influence decisions American Legal Realism Problem not every judge agrees on what is moral immoral Define law as the behavior of public officials mainly judges as they deal with matters before the legal system this behavior is what actually affects people s lives Law in the books are less important than law in action conduct of those who enforce interpret positive law Background biases values of the judge or jury not the positive law determine the results Realists want modern judges to be social engineer who weighs all relevant values considers social science findings when deciding a case make positive law only a factor be honest intelligent favor fuzzy discretionary rules that allow judges to decide case according to unique facts Sociological jurisprudence no distinct definition of law Law is a process of social ordering reflecting society s dominant interests values Law embodies the story of a nation s development through many centuries Law as an unplanned unconscious reflection of the collective spirit of a particular society Undermine legal positivist view that law is nothing more than the command of some political authority Two different processes of social ordering positive law living law informal social controls like customs family ties business processes etc Like natural law except only concerned with the fact that moral values influence law not if good bad Urge law must change to meet changing social conditions and values FUNCTIONS OF LAW 1 Peacekeeping private disputes serve as major function of the civil law 2 Checking government power promoting personal freedom ex constitutional restrictions 3 Facilitating planning and the realization of reasonable expectations ex rules of contract law 4 Promoting economic growth through free competition ex antitrust laws 5 Promoting social justice ex employer employee regulations 6 Protecting the environment LEGAL REASONING legal rule is major premise facts are minor premise and the result is product of combining the two Case Law Reasoning Stare decisis using precedents unless meaningful difference then distinguishes Statutory Interpretation natural ambiguity of language makes interpretation difficult Plain meaning begin interpretation with this statute s words must have a clear common accepted meaning Legislative history and legislative purpose use when language is ambiguous General public purpose widely accepted general notions of public policy Prior interpretations promotes stability certainty Maxims general rules of thumb employed CASE CITATIONS Smith vs Jones 375 MD 402 324 A 2d 201 MD 1993 375 volume 402 page A area split into juristictions Atlantic MD 1993 date of case decision 2d district 201 page 201 CHAPTER 2 THE RESOLUTION OF PRIVATE DISPUTES STATE COURTS general jurisdiction can hear any case Courts of limited jurisdiction minor criminal cases civil disputes involving small amts of or specialized matters Informal procedures parties can argue own cases w o attorneys Traffic courts probate courts small claims court Not
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