Intro to Law

Michael J. Bootsma

Societal/ Legal Relationships

• Sunday Sabbath Laws– Deuteronomy Chapter 5: 12

• Women’s Rights• Racial Discrimination

– Brown v. Board of Education & Scottsboro Boys

• Right to Privacy– Abortion – Homosexuality

Outlook of the Judicial System

• Judicial Process v. Political Process

• Judicial Restraint v. Judicial Activism

• Political Correct Theory

Source of U.S. Law

• Merry Old England– Most of legal inquiry was mechanical and

avoided factual inquiry

- wager of law

- ordeal – hot iron/cold water

- trial battle- Normans introduce trial by inquisition 12th

century- 12 recognitors sanction by the govt.

More English Law

• Judge gives legal advice and jurors are expected to be witnesses too.

• Finally lawyers introduced and eventually lawyers assume role of asking questions of witnesses

• Common Law Develops– Judge made law that is also called “unwritten

law”

Court System in England

• Kings Courts and Courts of Equity– Kings Court awards money damages– Court of Equity could provide equitable remedies eg.

Specific performance

• U.S. adopts common law – law that comes from courts and judges and not legislatures– Louisiana adopts a version of Roman Civil

Law. The original Napoleonic Code, or Code Napoléon (originally called the Code civil des francais, or civil code of the French)

U.S. System

• Federalism is key concept• State courts and Federal Courts• Trial Courts and Appellate Courts• Stare Decisis

– Superior court findings are binding– Result is precedent– Superior Court “should” follow its own

precedent– Easy to get around by distinguishing facts

Legislators

• Legislators make statutes– Federal and state legislatures

• Ordinances– Passed by county or city– Zoning ordinances – single houses or

commercial

• Doctrine of Supremacy– Federal Law Prevails as a general rule

Executive Branch

• Makes Laws too

• Executive Orders

• Agencies – Dept of Homeland Security

• Also have congressional created agencies– SEC

Lawmaking by Courts

• Common law and written law

• Civil Law and Criminal Law

• Judicial Activism vs. Strict Constructionists– Roe v. Wade and Brown v. Board of

Education

• No law covers every situation so judges make new law every day

• Lawmaking by initiative – people vote

Types and Classifications

• Federal Law– Constitution, Acts of Congress, Presidential Orders,

and Agency Law

• State Law• Civil Law

– Pertains to civil rights or private rights. Suits can be brought by citizens or govt. Contracts

– Criminal Law – deals with what are crimes and what their punishment should be.

• Enforced by the govt.

Classes Continued

• International Law– World Court– Sovereignty of Nations Concept

• Procedural Law– All the rules and mechanisms for processing

civil and criminal cases.• Sixth Amendment grants some procedural rights

• Substantive Law – defines duties, establishes rights and prohibits wrongs.

Ethics

• Why study ethics?• Moral Reasoning – the process of determine

whether a specific action is right or wrong.• Duty Based Ethics

– Golden Rule– 10 Commandments– Kant Categorical Imperative

• Guiding principle – What would happen if everyone acted this way.

Ethics Continued

• Problem with duty based ethics is that it does not prioritize.

• Utilitarianism– “greatest good for the greatest number”

• Determine what actions are available and who will be affected

• Then determine the consequences• Do a cost/benefit analysis

– No problem with prioritizing

More Ethics

• Limits of Utilitarianism– What is the common denominator for

happiness?– Reduces human beings to objects +/-– End justifies the means

• Non-Normative Statements – He went into the bar. Normative – He should not have went into the bar.

Other Sources of Law

• Coase Theorem

• Historical Law

• Positive Law

• Natural Law

• Legal Realism