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legal systems

-promote stability and order
-give effect to public policy

laws are often thought of as what

-rules and principles used by courts to decide controversies
-3 groups: legislative laws, judicial pronouncements, procedural law

substantive law

-create rights, duties, and privileges consistent with public policy at time of enactment
-affect rights and responsibilities of individuals/businesses
-ex. legislative acts and judicial pronouncements

procedural law

-allows institutions to control internal functions

classification of legal subjects

-public law v. private law
-public includes cases involving a legislative body as a party or as the adminstrator of a legal process
-constitutional, administrative, and criminal law
-private is where an injured party seeks to recover for an injury from the party causing the injury
-contracts, torts, and property [real, personal, and

sources of law

-court decisions: under Common Law, rules and analytical methods used by judges became Law
-contrastingly, Civil Law [Europe] involves codified, or written down, laws

what is the basis for the legal system in the US

-US and State Constitutions
-constitutions prevail over statutes, statues over judicial decisions (common law)

what are state constitutions modeled on

-Federal Constitution
-divide gov't into 3 co-equal branches for checks and balances

separation of powers

-vertical and horizontal division of power under Federal Constitution

judicial review

-power to review the actions of other branches and set them aside if violation of the Constitution

what is legislation

-acts/orders of legislative bodies like Congress, state legislatures, city/county councils
-compilations of actions are called codes
-interpretation may include legislative history

doctrines to construe laws

-criminal/taxing laws narrowly construed
-remedial statues construed broadly
-uniform state laws: helps interaction between states; enacted by federal gov't or the NCCUSL
-NCCUSL: group of academics, lawyers, and judges

case law and precedents

-each interpretation of law may have value as a precedent which serves as an authority for deciding similar cases
-common law courts bound by precedent (stare decisis) unless a court decides it shouldn't be followed
-precedent is binding in the court it was established and the courts supervised by it; it is persuasive in all other courts

problems with case law

-not complied coherently
-law unknown at many times
-precedents may conflict and be cited by opposing parties
-rejection of precedent

rejection of precedent

-if a subsequent court finds a prior decision "palpably wrong" the court may overrule precedent and/or change it

conflict of laws

-state laws and precedents are specific to each state
-stare decisis does not require one State to recognize the rules/precedents of another
-some problems involve 2+ States

which state's laws apply when there is a conflict of 2+?

-substantive law of the appropriate state may be used in foreign jurisdiction, but the forum may use its procedural laws


-different approaches to thinking about the Law as a philosophical system exist
-natural law, legal positivism, historical school, and legal realism

natural law

-system of ethics and morals inherent in human nature
-is there a higher legal authority than the state?

legal positivism

-the only rights we have come from the State
-all laws must be obeyed as enacted
-there is no higher law

historical school

-views evolution of law through the historical origins and subsequent development of the laws

legal realism

development of the law is shaped by social/technological forces

courts of law or equity?

-courts exist to provide remedies to injured parties
-remedy: allows a litigant to enforce or be compensated for an injury to a right or privilege
-may be legal or equitable, modern are both

legal and equitable remedies

-if the injured party can be made whole by receiving something of economic value, the remedy is a legal remedy [damages]
-if a remedy at law is inadequate, a litigant may seek a remedy in equity, which involves notions of fair dealing and justice

courts in equity

-called chancery courts
-examples of equitable remedies: injunctions, decrees, specific performance, rescission/reformation of a contract...

criminal v. civil law

-does public policy consider the wrong as one against society as a whole [murder, theft]=CRIMINAL or -against an individual [wrongful death, conversion, contract]=CIVIL

private v. public law

-is the dispute between private individuals [including a business]=PRIVATE or
-is the government or governmental agency involved=PUBLIC

national v. international law

-does the dispute involve the law of a particular nation=NATIONAL or
-involve the interests between more than one nation[NAFTA, U.N., NATO, EU]=INTERNATIONAL

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