Chapter 1 The American Legal System Sources of the Law Law is 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 American law the US Constitution and state constitutions the common law the law of equity the statutory law and the rulings of various executives John Austin defines law as a set of definite rules of human conduct with appropriate Roscoe Pound says law is social engineering the attempt to order the way people 5 sources of law common equity statutory constitutional executive orders and sanctions for their enforcement behave administrative rules Common law aka judge made law Inductive system in which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts Developed in England the 200 years after the Norman Conquest in the 11th century In those centuries Anglo Saxon customs were replaced by a single system of law worked out by jurists and judges It then became common throughout England thus naming it Common Law Also called common law to differentiate it from church law that was prevalent at the time First lawyers appeared during this era Reflected the custom of the court judges A fundamental part of common law is that judges should look to the past to follow court precedents Stare decisis let the decision stand A judge should resolve current problems in the same manner as similar problems were solved in the past Damages money Damages are a typical remedy for common law Usually deals with smaller individual problems The Role of Precedent Four options for handling precedent 1 Accept follow the court can accept the precedent as law and rule 2 Modify update the court can modify or change the precedent 3 Distinguish the court can distinguish the precedent from the current case Ex picture of hospitalized girl giving birth vs hospitalized girl with a disease They are two different circumstances 4 Overrule the court can overrule the precedent and declare the prior decision wrong and thus no longer the law This happens only when there are changes in a Factual knowledge and circumstances b Social more and values c Judges justices on the court The supreme court of any state is the final authority on the meaning of the constitution and laws of that state and its rulings on these matters are binding on all state and federal courts in that state Finding Common Law Cases Publication of the first British Term Reports began the modern concept of fully reporting written decisions of all courts in 1785 Case reporter locate appropriate cases using the system of citation The cases are collected chronologically Citation each case collected has an identification number o Ex 385 US 39 1966 US United States Reports 385 the specific case in the United States Reports 39 the page on which the case appears 1966 the year in which the case was decided Equity Law Very similar to common law the only way to distinguish the two is that there are differences in procedures and remedies More flexible than common law Equity suits are never tried before a jury Allows restraining orders Judicial decrees rulings for equity law Not a yes or no ruling judges are free to do what they think is right and fair Typical remedies of equity law o Temporary restraining order o Preliminary injunction o Permanent injunction Statutory Law law speech Created by elected legislative bodies at the local state and federal levels Statutes deal with problems affecting society or large groups of people Can anticipate problems common law cannot o Ex state legislature can pass a statute that you cannot publish school records of a student without prior consent However common law must wait for the records to be published and for a student to take action against it Criminal laws statutory laws Statutory law is collected in codes and law books instead of in reports like common Statutory construction the resulting process of judicial interpretation Ex sometimes judges are called upon to rule on the exact meaning of ambiguous phrases or words Attacking the Constitutionality of Statues 2 primary ways to argue that a statute violates the First Amendment right of free 1 By attacking problems with its wording terms and language 2 By attacking problems with its actual application to a particular factual scenario Page 10
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