ucsd extension class 1 of 3 jack friery 1 jack friery © 2008
TRANSCRIPT
UCSD ExtensionClass 1 of 3
Jack Friery
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Three meetings Goals:
◦ Sources of Law◦ Court System◦ Classifications of Law
Assignments and Final Exam
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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
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Your name and a bit about yourself
Why are you taking this class? Any experience in the legal
field? Expectations for class
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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.
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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
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Constitutional law International law Statutory law Administrative law Case law Common law tradition
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Established by:◦U.S. Constitution◦Constitutions of
the states◦Cases
interpreting these
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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.
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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.
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Ultimately, it is the Supreme Court of the United States that has authority to give final interpretations of the Constitution.
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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
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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.
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Common lawTreaty law
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Statutes consist of the laws passed by the federal Congress and state legislatures
Ordinances are statues passed by a municipal or county governmental unit
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Bill introduced Debated Sent to either Senate or House for approval Signed by President or Governor
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Passed daily Filed Chronologically Sorted by topic Codified Found by using topical index
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Bankruptcy law
Corporate law Patent,
copyright, and trademark law
Employment law
Antitrust law Consumer law Wills and
probate administration
Environmental law
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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
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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.
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Common law – originated in medieval England with the creation of the king’s courts following William the Conqueror’s Conquest of England in 1066.
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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.
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Later cases that involved similar facts and issues could be decided with reference to the earlier cases, or
precedents
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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.
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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.
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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
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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
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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.
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Courts of law◦ The early English king’s courts the remedies that
could be granted were restricted to: Land Items of value Money
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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.
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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.”
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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.
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Sometimes referred to as judge - made law Interpretation of all law including:
◦ Constitution◦ Statutes◦ Administrative Law◦ Common Law
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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.
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Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
Name, Official Citation, Unofficial Sources, Year
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Plaintiff◦ The one who initiates a lawsuit
◦ Defendant
◦ The one against whom the lawsuit is brought
◦
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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
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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
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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
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Questions?
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