LECTURE SUMMARY

What is Law?

 Various Sources of Law

 Federal v. State Law (Federalism)
 Public v. Private Law
 Criminal v. Civil Law
 Substantive v. Procedural Law
 POINTS OF CLARIFICATION

 The overlap between tort and criminal law?

 What is public v. private law?

 Public: international, criminal, constitutional and
administrative law.
 Private: lawsuits between private actors.

 Federal Criminal Law?

 Breach of federal statutes (e.g. tax evasion) and crimes that cross
state lines (e.g. drug trafficking)
 Introduction to
AMERICA’S LEGAL SYSTEM Common Law
 QUESTION OF THE DAY

What is a common law legal system?

 Law is developed by judges through decisions of
courts
 Originated in Britain.
 Court decisions are a primary source of law.
 Judicial interpretation of statutes is binding.
 Statutes may trump common law (caveat: judicial
review).
 Not all legal systems follow common law principles.
 KEY TERMS

 Judg e-Made Law:

“precedent-setting cour t decisions issued by judges.”

 P r ecedent:

“a cour t decision that ser ves as authority for deciding a similar question
of law in a later case with similar facts.”

 S tare Decisis:

“let the decision stand” – equivalent in meaning to precedent.

 Matter o f fir st impression:

“A legal issue decided by a precedent -setting cour t for the fir st time.”
 LAYERS OF THE LEGAL SYSTEM

 See Neubauer pg. 10

INSTITUTIONS OF LAW

INTERPRETERS OF THE LAW

CONSUMERS OF THE LAW

 EVOLUTION OF PRECEDENT:
AN EXAMPLE

The Case of the Open and Obvious Condition

 THE ADVERSARY SYSTEM

“system of law that (1) relies on the contest between each advocate
representing his or her par ty's positions and (2) involves an impar tial
per son or group of people, usually a jur y or judge, tr ying to determine the
truth of the case.”

Key Terms:

 Plaintif f: par ty or par ties initiating a lawsuit.

 Defendant: par ty who must answer the lawsuit.

Style of a case: Joe (Plaintif f) v. Smith (Defendant)

Questions and Comments:

 Cour ts are passive institutions.

 The Right to Counsel?
 What’s good and bad about the adver sarial system?
 LAW V. FACTS

The role of the judge : (1) decides the law and (2) applies the
law to an undisputed set of facts.

The role of the factfinder: resolves a factual dispute.

 Factual disputes usually resolved at trial.
 Bench trial v. jur y trial.
 JUSTICIABILIT Y

The Case and Controversy Requirement : a cour t case must

implicate a real dispute between/among par ties.
 No advisor y opinions.
 Interpreted from Ar ticle III of the U.S. Constitution.

Related Concepts:
 Standing: suffering of a “particularized” harm
 Harm must be existing or imminent.
 Taxpayer lawsuits?
 Ripeness: “a case is not ripe if it is contingent upon future
events that are too speculative.”
 Mootness: “a legal ruling will have no impact.”
 Example: DeFunis v. Odegaard
 REMEDIES

 Civil Cases: remedies are designed to “make one whole” or

prevent further harm.
 Compensatory Damages: compensate for injury/loss
 Punitive Damages: Awarded for willful and malicious harm.
 Example: BMW v. Gore
 Declaratory Judgment: “declares the rights and obligations of the
parties.”
 Restitution: the return of goods.
 Equitable Relief: e.g. injunctions
 Order a party to do something or not do something.
 Must demonstrate “irreparable harm.”
 Criminal Cases: remedies are designed to punish.
 Jail/Prison
 Fines
 Penalties
 Restitution: damages for victims
 DISCUSSION QUESTIONS

What are the benefits of America’s common

law judicial system?

What are its limitations?