Chapter 1

1. Chapter 1 Legal Heritage & Critical Legal Thinking

2. What is Law • Law consists of rules that regulate the conduct of individuals, businesses, and other organizations within society.

3. Black’s Law Dictionary • Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law.

4. Functions of the Law • Keeping the peace, which includes making certain activities crimes • Shaping moral standards (drug use ..) • Promoting social justice (discrimination in the workplace) • Maintaining the status quo (no overthrow of the government)

5. Functions continued • Facilitating orderly change (how laws are created and passed) • Facilitating planning (business law) • Providing a basis for compromise (settled prior to trial – about 90%) • Maximizing individual freedom (freedom of speech, religion, & association – First Amendment)

6. Laws need to be: • Fair • Flexible • Ongoing

7. Schools of Jurisprudential thought • Natural Law School – what is correct – emphasizes a moral theory of law (based on morality & ethics) • U.S. Constitution • Magna Carta • U.N. Charter

8. Schools continued • Historical School – aggregate of social traditions and customs over the centuries – evolutionary based on society • Analytical School – law is shaped by logic (facts of the case)

9. Schools continued • Sociological School – means of achieving and advancing certain sociological goals (realists) – purpose of law is to “shape” social behavior (don’t look at past laws) • Command School – set of rules developed, communicated, and enforced by ruling party (changes)

10. Schools continued • Critical Legal Studies School – legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo – use subjective decision making • Law & Economics School – promoting market efficiency should be the central concern of legal decisions

11. History of American Law • English Common Law • Developed by judges who issued opinions when deciding a case • Principles became “precedent” for later judges in similar cases • 3 types of courts • Law court (local judges appointed by King) – only relief available at law courts was a monetary award for damages

12. History Continued • Chancery (Equity) court – because of unfair results and limited remedy in law courts – under authority of Lord Chancellor – looked at merits of the case (appealed from Law court) • Merchant Court – based on common trade practices and usage (in 1900’s absorbed into regular law court system of England) • All states (except Louisiana) based on English common law – merged courts

13. Sources of Law in U.S. • Constitution of the U.S. is the supreme law of the land – very broad • Establishes the 3 branches of government • Legislative (Congress) – power to make law • Executive (President) – power to enforce law • Judicial (courts) – power to interpret & determine validity of law

14. Sources continued • State constitutions • Treaties • President with consent of 2/3 of the Senate may enter into treaties with foreign governments • Codified law • Statutes are written laws for certain conduct by covered parties

15. Sources continued • Federal statutes – antitrust laws, securities laws, bankruptcy laws, labor laws, equal employment opportunity laws, environmental protection laws, consumer protection laws, etc. • State statutes – corporation laws, partnership laws, workers’ compensation laws, the Uniform Commercial Code, etc. • Local Ordinances – traffic laws, local building codes, zoning laws, etc.

16. Sources continued • Executive Orders • President and governors empowered to issue executive orders (creating Office of Homeland Security) • Regulations and Order of Administrative Agencies • Legislative & executive branches can establish such agencies

17. Sources continued • Securities and Exchange Commission • Federal Trade Commission

18. Judicial Decisions • Federal & state courts issue judicial decisions – giving legal reasoning used in deciding the case • Precedent – lower courts must follow precedent of higher courts • Courts of one jurisdiction are not bound by precedent of another jurisdiction • Adherence to precedent – stare decisis (to stand by the decision)

19. International Law • Follows Civil law system – Romano-Germanic (dates to 450 B.C.) when Rome adopted the Twelve Tables (code of laws applicable to the Romans) • Austria, Belgium, Greece, Indonesia, Japan, Latin America, the Netherlands, Poland, Portugal, South Korea, Spain, Sub-Saharan Africa, Switzerland and Turkey follow civil law

20. Critical Legal thinking • Judges must specify the issue, identify the key facts and the applicable law and then apply the law to the facts to come to a conclusion – called critical legal thinking.

21. Terms • Plaintiff – party who originally brought the lawsuit • Defendant – party against whom the lawsuit has been brought • Petitioner or Appellant – party of has appealed the decision of the trial court or lower court • Respondent or Appelee – party who must answer petitioner’s appeal

22. Briefing a Case • Brief a case to clarify the legal issues involved and to gain a better understanding of the case • Summarize court’s decision in 400 words • Highly structured • Five parts • Case name, citation and court (25 words) • Summary of key facts (125 words)

23. Briefing continued • The issue presented by the case – a one-sentence question answerable by only “yes” or “no” (25 words) • The court’s resolution of the issue (the “holding”) ( 25 words) • Summary of the court’s reasoning justifying the holding (200 words)