MML Notes Chapter 1 Five Sources of Law 1 Common law 2 Equity law 3 Statutory law 4 Constitutional law 5 Executive orders and administrative rules Law A set of rules that attempt to guide human conduct and a set of formal governmental sanctions that are applied when those rules are violated Sources of law US constitution and state constitutions the common law the law of equity statutory law and the rulings of various executives Federal constitution is the supreme law of the land COMMON LAW Developed in England during the 200 years after the Norman conquest in the 11th century Called common law to distinguish from ecclesiastical law Common law is considered discovered law Common law became judge made law Common law is inductive legal rule and legal standards are arrived at after consideration of many cases with similar facts Deductive legal systems the rules are expounded first and then the court decides the legal situation under the existing rule Stare decisis Let the decision stand A judge should solve current problems in the same manner as past problems were decided Stare decisis predictability and consistency legitimacy THE ROLE OF PRECEDENT The court should seek to follow precedent but is not bound to it by any means Four options for handling precedent o Accept follow o Modify update o Distinguish o Overrule Distinguish is to say that the facts aren t exactly the same in those two cases and thus it does not really apply Overrule is to say that the prior decision was wrong and thus no longer the law Only happens when there are changes in o Factual knowledge and circumstances o Social mores and values o Judges justices on the court The only court that can overrule a court s decision is the court of the same state or the Supreme Court Decision by the Supreme Court regarding the US constitution and federal laws are binding on all federal and state courts Decisions by the US court of appeals on federal matters are binding only on the other lower federal and state courts in that circuit or region State courts ruling on the first amendment as with many media law cases will often look to federal precedents Hunch theory of jurisprudence a judge decides a case based on a gut feeling of what is right and wrong and then seeks out precedents to support that decision FINDING COMMON LAW CASES of prior decisions in courts Common law is not written down it is contained in the thousands The modern practice of fully reporting all court decisions began in 1785 with the publication of the first British Term Reports The cases of a single court are collected in a single case reporter Each case collected has its individual citation number Identification number tells you the year the volume the case reporter and page number LexisNexis and Westlaw online databases Tracking down names and citations of applicable cases is a hard process taught at law school EQUITY LAW Typical remedies of equity law o Temporary restraining order TRO o Preliminary injunction o Permanent injunction Common law and equity law distinction has blurred The difference lies in procedures and remedies Equity begins where common law leaves off Equity suits are never tried before a jury Rulings come in the form of judicial decrees not in judgment of yes or no Precedents aren t as important here judges must use discretion Civil lawsuits lead to damages money but equity allows a judge to issue preventative measures or remedial measures Generally a judge issues a temporary restraining order before it hears arguments and then decides if it will be permanent A party seeks an equitable remedy a restraining order or injunction if there is a real threat of direct immediate and irreparable injury for which monetary damages won t provide sufficient compensation STATUTORY LAW Statutory law is not judge made it is created by elected legislative bodies at the local state and federal levels Statues tend to deal with problems affecting society or large groups of people in contrast to common law which usually deals with smaller individual problems Constitution is statutory not common Statutory law can anticipate problems common law cannot Common law happens after the offense has occurred statutory prevents it from happening The criminal laws are all statutory laws Common law crimes have not existed since 1812 Statutory law is collected in codes and law books instead of in reports as in common law Judicial interpretation of what the statutes mean done by judges is called statutory construction Must find the legislative intent or what the legislature meant when they passed the law not what you think it means Things used to determine legislative intent o Minutes of committee hearings o Legislative staff reports o Reports of debate on the floor ATTACKING STATUTES Two ways to argue that a statute violates first amendment o By attacking problems with its wording terms and language known as a facial attack o By attacking problems with its actual application to a particular factual scenario as applied attack CONSTITUTIONAL LAW Great Britain does not have a written constitution like we do The ends of a constitution o Provide the plan for the establishment and organization of o Outline the duties responsibilities and powers of various the govt elements of govt o Guarantee certain basic rights to the people such as freedom of speech and freedom to peaceably assemble Statues are enacted via majority vote To change the federal constitution an amendment may be proposed by a vote of 2 3 of the members of both the US house of Reps and Senate The US constitution is the supreme law of the land anything that conflicts with it is unenforceable If a statute is passed by the Michigan legislator and signed by the governor of that state it is still unenforceable if it conflicts with the Michigan constitution US constitution has 27 amendments The first ten are the bill of rights State constitutions can give more and greater right to their citizens than are afforded by the US constitution but they can t reduce or roll back rights Void for vagueness doctrine a law will be declared unconstitutional and struck down if a person of reasonable and ordinary intelligence would not be able to tell from it what speech it allowed or did not allow Vague laws are problematic because they don t provide fair notice and they are hard to enforce because they give too much discretion Overbreadth doctrine a law is overbroad if it does not aim only at problems within the allowable area of
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