ucsd extension class 1 of 3 jack friery 1 jack friery © 2008

UCSD ExtensionClass 1 of 3

Jack Friery

1Jack Friery © 2008

Three meetings Goals:

◦ Sources of Law◦ Court System◦ Classifications of Law

Assignments and Final Exam


Attorney for over 30 years Government, large private firm, in-house

counsel, and solo firm practice Specialize in federal government

contract matters And, yes, married to a paralegal for over

30 years


Your name and a bit about yourself

Why are you taking this class? Any experience in the legal

field? Expectations for class


No one right answer, because how law is defined depends on the speaker’s personal philosophy about morality, ethics and truth.◦ Examples:

Canon law Natural law Sharia

Law consists of a body of rules of conduct with legal force and effect, prescribed by the controlling authority (the government) of a society.


Based on English common law, because the colonists who first came to U.S. were governed by it

Even after independence, was used as model—except Louisiana


Constitutional law International law Statutory law Administrative law Case law Common law tradition


Established by:◦U.S. Constitution◦Constitutions of

the states◦Cases

interpreting these


The U.S. Constitution, as amended, is the supreme law of the land.

Any law—federal or state—violating the Constitution, if challenged, will be declared unconstitutional and cannot be enforced.


The U.S. Constitution sets forth the powers of the three branches of government and the relationship between them.

The first ten amendments to the U.S. Constitution are known as the Bill of Rights.

The rights secured by the Bill of Rights are not absolute and are given form and substance by the courts.


Ultimately, it is the Supreme Court of the United States that has authority to give final interpretations of the Constitution.


The U.S. Constitution is the embodiment of the founder’s belief in the rule of law

It establishes due process of law◦ Procedural◦ Substantive


Each State has a constitution setting the organization, powers, and limits of the state government.

The Tenth Amendment to the U.S. Constitution reserves all powers not granted to the federal government to the states.


Common lawTreaty law


Statutes consist of the laws passed by the federal Congress and state legislatures

Ordinances are statues passed by a municipal or county governmental unit


Bill introduced Debated Sent to either Senate or House for approval Signed by President or Governor


Passed daily Filed Chronologically Sorted by topic Codified Found by using topical index


Bankruptcy law

Corporate law Patent,

copyright, and trademark law

Employment law

Antitrust law Consumer law Wills and

probate administration

Environmental law


To assist the federal or state legislatures in implementing the laws that they enact, they often delegate the implementation of the law to administrative agencies.

The rules, orders, and decisions of administrative agencies are known as administrative law.

Examples: EEOC, EPA, Social Security Administration


Administrative agencies are created when Congress passes enabling legislation, which specifies the name purpose, composition and powers of the agency are created.

Examples:◦ OSHA, EPA, FDA, and FTC

Each state also has many administrative agencies.


Common law – originated in medieval England with the creation of the king’s courts following William the Conqueror’s Conquest of England in 1066.


The king’s courts sought to establish a set of customs for the whole country.

Courts developed the common law rules for the principles underlying judges’ decisions in actual cases.

Judges attempted to be consistent, and, when possible, they based their decisions on principles set forth in earlier cases.


Later cases that involved similar facts and issues could be decided with reference to the earlier cases, or

precedents


In Latin it means, “to stand on decided cases” The use of precedent eventually became a

cornerstone of the common law system. Under the doctrine of stare decisis, the judges are

obligated to follow precedents established by higher courts within their jurisdiction.


Stare decisis provides efficiency, consistency, stability and predictability in our legal system.

Occasionally, courts will depart from precedent, if the precedent is based on a clearly erroneous application of the law or if the political and cultural environment has change so significantly that the precedent is no longer relevant.


Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)

This is a case in which the U.S. Supreme Court departed from precedent

The Court decided that separate educational facilities for whites and blacks, previously held to be constitutional, were inherently unequal


Occasionally, there is no precedent on which to base a decision.

When deciding cases of first impression, courts consider the following factors:◦ Legal principles and policies underlying the previous

court decisions or existing law◦ Social value and customs◦ Public policy◦ Data and concepts drawn from the social sciences


In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (1987)

Example of case of first impression A New Jersey court had to decide whether a

surrogate-parenting contract should be enforced against the wishes of the surrogate parent.


Courts of law◦ The early English king’s courts the remedies that

could be granted were restricted to: Land Items of value Money


Equity is the branch of law founded on notions of justice and fair dealing, seeking to supply a remedy when there is no adequate remedy available at law.


Today, courts of equity and courts of law have been merged so that one court can award both legal and equitable remedies.

Courts are guided by equitable principles and maxims when deciding equity cases. Example: “Whoever seeks equity must do equity.”


Common law governs all areas not covered by statutory law.

The American Law Institute (ALI) drafted and published compilations of the common law called Restatements of the Law. The Restatements summarize and clarify common law rules and principles.


Sometimes referred to as judge - made law Interpretation of all law including:

◦ Constitution◦ Statutes◦ Administrative Law◦ Common Law


Case titles ◦ The name of a case gives the names of the

parties to the lawsuit.◦ Plaintiff’s name appears first◦ When an appeal is filed, some appellate courts

place the appellant’s name first.


Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

Name, Official Citation, Unofficial Sources, Year


Plaintiff◦ The one who initiates a lawsuit

◦ Defendant

◦ The one against whom the lawsuit is brought

◦


Can be elected or appointed Federal judges can are appointed for life State judges are elected for terms Commissioners or magistrates are used in

some courts to make decisions on matters before trial


The opinion is the court’s statement of its reasons for its decision, the rules of law that apply and the judgment.

Most often found in appellate cases


Unanimous – all agree Majority opinion – most agree Plurality opinion – largest group opinion Concurring opinion – agree but different

reasons Dissenting opinion – don’t agree with

majority’s decision


Questions?


ucsd extension class 1 of 3 jack friery 1 jack friery © 2008

Documents

jack friery

supreme law

state government

common lawtreaty law

english common law

branches of government

bill of rights

federal congress