Law and Language Common forms of law 1.

Statutory Law statues are passed by legislatures and take the form of rules to govern social behavior. Can be relatively precise or general 2. Criminal Law, Civil Law governed by statues = result of legislative process in either state legislature or federal congress a. US Congress = H or R and Senate, each originates its own bills with its own committees, both houses of Congress vote to approve a bill, send to Pres for signature, 2/3 vote needed to overturn veto b. Statutory Interpretation court interprets statute 3. Administrative Regulations originate from executive branch of government, legislature creates law state that executive branch has authority to make rules in particular area a. How to make admin. Regulations i. Give public notice of proposed rule ii. Take public comments on proposal iii. Draft final rule b. Can be challenged in court if: i. Process used to make rule was not followed correctly ii. Rule exceeds scope of authority iii. Rule is an arbitrary less than fully rational exercise of power iv. Ex. Sexual harassment 4. Constitutional Law a. Roe v Wade constitutional law is a higher law than any state statue 5. Common Law a. Comes solely from past cases precedents, under stare decisis common law courts normally adhere to earlier rulings, but also power to change it through 3 ways: i. Draw analogies between wildly different cases to make law that covers new circumstances ii. Prior case should only govern cases with very similar facts, and cannot apply old rule to the current case, since current case is different from the older case iii. Old rule is outdated or unwise even if cases that have similar facts -> eliminate old rule altogether b. Ex. ownership, negligence, contract Jurisprudence and Legal Reasoning 3 readings 1. First reading is the introduction to Law 101, Professor Feinman points out that law is a human institution and argues that we shouldnt be intimdated by it 2. MOST SIGNIFICANT: Essay called The case of the Speluncean Explorers by Harvard Law Schools Lon L. Fuller. Discuss/compare/contrast each of the separate opinions in this case, based on fictional events 3. Legal Studies Lecturer Robert J Borghese An Introductory Note on Jurisprudence schools of jurisprudence = natural law theory, legal positivism,

legal realism, critical legal studies and law/economics -> link this note to Lon Fullers essay The case of the Spelncean Explorers -four defendants and roger whetmore stuck in a cave with very few rations, will take 10 more days to get them out but by then they will starve, whetmore proposes a contract with die that one of them should be killed and eatenwhetmore then tries to back out of the contract, but is killed when the four defendants continue with the contract Supreme Justice Truepenny CJ believes that court should rule their execution must adhere strictly and literally to the law that Whoever shall willfully take the life of another shall be punished by death, and then allow executive branch to repeal, or place request for clemency justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law. J Foster (innocent) Argument I: Four men were ruled by natural law rather than positive law. the proposition that our positive law is predicated on the possibility of men's coexistence in society When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force. jurisdiction rests on a territorial basis. it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth's surface Argument II: every law must be interpreted in terms of its purpose. every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose Commonwealth v. Staymore defendant convicted under a statute making it a crime to leave ones car parked in certain areas for longer than two hours, defendant tried to remove car but couldnt because of political demonstration Fehler v. Neegas the word not was placed incorrectly in a statute, court refused to accept literal interpretation of the statute and rectified its language Self-defense: one of purposes of criminal legislation is to deter men from crime -> but if declare killing in self-defense is murder, it still wouldnt prevent a man from killing in self-defense when he is in such a dangerous situation, no

matter what the law says. -> same logic for self-defense being an Exceptional case can be applied to the speluncean explorers. if the future any group of men ever find themselves in the predicament of these defendants, their decision whether to live or die will not be controlled by criminal code Surely were intelligent enough to interpret statues, and not read them literally J Tatting Rejects notion that the men were under a code of nature which the court should use to judge this case, and rejects the validity of the code of nature. Rejects argument that no statute, whatever its language, should be applied in a way that contradicts its purpose. 1. -if these men were outside the jurisdiction of our law, when did this moment occur? Need to define that moment (when entrance to cave was blocked, or when the threat of starvation became imminent) -if must use law of nature, then how can court of commonwealth judge such a case 2. tatting objects contents of the code of nature: law of contracts is more fundamental than law of murder, and that when one of the parties of the contract withdraws, the other party may Take the law in their hands and enforce it by violence 3. but there can be more than one purpose ascribed to a law, 4. Fosters interpretation of self-defense doesnt realize the significance of the word willfully- a man in self-defense does not act willfully, but the defendants definitely did (deliberated killing for hours) 5. Should use principles that are sound and that can stand several cases 6. Prosecutor should not have requested indictment of murder for this case, but indictment of canniablism 7. Withdraw from case J Keen Two questions that should be put aside, not concerned with 1. Whether executive clemency should be extended to these defendants if the conviction is affirmed. question for the chief executive and not us, disapproves of Chief Justice demanding that the Chief Executive give clemency upsets the balance between executive and judiciary branches 2. Deciding the morality of the case we are deciding the legality.

Sole question: whether these defendants willfully took the life of Whetmore -the answer is obvious: yes. -difficulty arises because some cannot separate legal and moral aspects. -should respect that this office requires legal over moral aspects -we cannot know the purpose of the law, so we cannot say that there is a gap in it -Foster purposely looks for gaps in laws, part of the age-old war/imbalance between executive, legislative and judicial branches -question is not the purpose of the rule but its scope the self-defense law applies to cases of resisting an aggressive threat to the partys own life, so Whetmores case does not apply : he made no threat against the lives of these defendants -cannot apply a statute as it is written and remake it to meet your own wishes at the same time -courts should stand steadfast on statutes, better in the long run -> if those principles had been observed from the beginning, the result would undoubtedly have been legislative revision of it (expects legislatures to revise erroneous law) J Handy government is a human affair, men are ruled not by laws/theories but by other men. Must apply common sense to law, not law for laws sake. Flexibility allows us to complete taks with efficiency and common sense, and to match those that we (legislators) rule, or that are ruled by the law -law will avail to nothing if mass of people do not follow or believe in it? -danger of getting lost in the patterns of our own thought and forget that these patterns often cast not the slightest shadow on the outside world -masses would acquit the explorers/defendants -thus the end result is acquittal anyway, because jury would have done that, or (as supreme justice said) would have passed to chief exective who would grant clemency An Introductory Note on Jurisprudence- Robert J. Borghese How do courts arrive at judicial decisions? What are the principles on which legal rules are based? 1. Natural Law Theory the existence of universal laws of nature which override human laws and provie the standard against which humans laws are to be judged. a. Aristotle: justice can be subdivided into what it is by nature and what it is by convention. b. Aquinas synthesized Christian theology and Aristotelian philosophy law is a rule and measure of acts where a man is either induced to act or is restrained from acting. law is combo of reason and will. Reason is an element of nature positive laws (laws framed by humans) are only valid/binding if they are in accordance with natural law.

c. Locke state of nature was rule of reason, that no one should injure another in his life, health, liberty or possession -> but defect, cant reply on responsibility of individuals in the state of nature to inflict just punishments ->result is civil society. i. Surrender liberty for better protection of natural rights in civil society, so govt must rule by natural law 2. Legal Positivism rejects the conception of law as a set of universal principles grounded in nature, religion or morality, focuses on the conventional nature of law dictated by political authority. Distinguish positive law from natural law (law as it is from law as it ought to be). a. John Austin command theory of law all laws are commands. b. Associated with science c. Judges make decisions not based on their own opinions, but reflect will of political authority, because use authoritative premises and legal reasoning 3. Legal Realism (20th century Holmes) court should determine fair outcome should be under facts of particular case. The law is determined not by those who write/pass legislation but those who interpret it (subjective). Two fold argument: a. Authoritative premises of law are not authoritative but are vague/contradictory, and vary with case at hand. b. Legal reasoning is not determinative, can be manipulated to produce legal results for non-legal reasons. i. Both of these are merely post-hoc rationalizations used by courts for decisions for non-legal reasons For legal realists, judicial decisions are based on social/cultural temperament of the judges. 4. Critical Legal Studies (60s and 70s legal scholars) takes legal realism one step further. a. Attack on formalism law is power politics, cannot be autonomous or neutral in their legal reasoning and rationality, cant be independent of ethical ideals/political inclinations b. Makes proposition that law is indeterminate because legal reasoning cannot compel/justify definite answers in legal disputes i. Rules and arguments are inconsistent, incomplete, ambiguous -> indeterminate ii. Modern linguistic theory -> nature of language renders law indeterminate c. Existing legal order uses contradictory visions of human nature i. Contradiction that individual freedom and autonomy is possibly only under conditions of collective constraint and coercion

5. Law and Economics unlike legal realism/CLS, finds rationality in existing legal order a. Common law doctrine is an accommodation to changing social and economic circumstances. Judges aim to produce economically efficient outcomes where resources are being allocated to produce a combo of goods/services that best meet demands of the market. b. Judges should consider issues of efficiency. Legal Procedures Litigation legal systems mechanism for resolving dispute between two or more people, companies, institutions, private parties Civil procedure - the body of law that structures the mechanism 1. 2. 3. 4. Litigation is a rare event Ligitation is an adversary process Ligitation involves finding facts and making/applying legal policies Civil Ligitation is not the only form of governmental dispute resolution, also criminal ligitation rather than civil ligitation

Tasks of civil procedure: 1. Implement substantive rules of law and the values/policies on which they are based, litigation provides backup mechanism for people who do not conform to law, and a forum where the values/policies underlying law can be articulated, reinforced and worked out in new situations 2. Upholds right to fair process, dignity of individual litigants, needs several components: a. Parties must have opportunity to present relevant facts and arguments b. Right to jury c. Jury/judge must be neutral, listen to evidence/arguments, decide solely on the basis of evidence/arguments d. Must be able to have the adjudication reviewed for error by an appellate court, have serious errors corrected e. The decision must have finality, otherwise endless relitigation 3. In order to be fair, much be efficient, balance better process with burdens of expense/delay Where do court cases come from? Victims recognition that a potential legal dispute exists, has to be able to afford the lawyer (lawyer might be paid some of the recovery sue money), must be worthwhile to sue (drunk driver couldnt pay but Audi could) Sue First Ask Questions Later Ligitation = business strategy -> potent weapon of competitive strategy -can affect who wins the race for first mover advantages -redefine market boundaries, block substitute products, lock out new competitors

Litigation process: 1. Decision to sue a. Do the cost, time and lost opportunities involved in litigation make it a good investment given the business purpose one is trying to achieve? Cost benefit analysis b. Good cost-benefit analysis takes into account expense of litigation, opportunity costs, potential damage to existing relationships/reputation, probability of winning, strength of the case on damages, possibility of successful appeal, the impact of suing on a firms core profit model i. When a firms future is at stake, litigation may make sense even when probabilities of winning appear bleak 2. Selection of the court before which to bring a case: where to bring the lawsuit and before which judge a. Arbitration clauses usually establish location of the hearing, parties mutually select the arbitrator b. Contingent fee no win no fee c. Judge Shopping i. Personal biases, politics (judges have to be elected/reelected) ii. Worst corruption: Vanderbilt and his judge barnard vs. Gould for railroads, class-action lawyer seeking favorable judge for asbestos case in Texas filed four separate actions in four different Texas courts, added 300 plaintiffs to the case that drew most plaintiff-friendly judge -> fined 500,000 iii. Ensure than an especially disfavored judge does not hear case > arrange the case to require a recusal based on conflicts of interest 1. Judge Clemon had a nephew who worked at a law firm, hire law firm d. Forum Shopping i. Litigate cases as close to home as possible elected judges favor local plaintiffs against out of state defendant 1. Because in-state plaintiffs will reelect that judge 3. Use of preliminary motions/filings/injunctions a. Pay filing fee, draft complaint alleging 3 things: i. Court has jurisdiction over the particular defendant in the case personal jurisdiction ii. Court has jurisdiction over the type of claim being brought subject matter jurisdiction iii. Facts in the case satisfy some legal claim such as patent infringement, breach of contract or violation of antitrust law (do not need proof yet, can simply allege facts)

iv. Defendant decides whether to dismiss case on jurisdictional grounds or because no valid legal claim -> but takes time/costs money, only 10% judges grant such motions v. Courts entertain motions for preliminary injunctions important strategic legal weapon: judicial orders require defendant to do or stop doing something while the case goes forward to trial -> damage capital-constrained rivals and tend to benefit stronger firms, penalty for refusing injunction is severe (jail time) vi. Prayer for relief b. Settlement often occurs before case is ready for evidentiary discovery(60% cases resolved by negotiation) c. Two major factors affect the likelihood and timing of settlement: whether the attorneys representing the parties have dealt with one another in the past, and who pays the attorneys fees i. Attorneys fees: in US a each side pays own legal expenses except for antitrust law, civil rights or consumer-protection cases 1. Effect: promotes settlement, both sides have incentive to settle because both will save legal fees if resolve case peacefully. Loser-pays system fuels hope on both sides that recoup legal expenses by winning trial ii. 4. Pretrial discovery 5. Trial 6. Appeals process 7. Judgment Class actions, alternative to litigation: commercial arbitration Litigation is really ultimate form of negotiation, more than 95% business cases filed are settled/dismissed before reaching formal trial