Understanding Law: Its Definition, Origins, and Types - Prof. John C. Kilwein, Study notes of Political Science

Download Understanding Law: Its Definition, Origins, and Types - Prof. John C. Kilwein and more Study notes Political Science in PDF only on Docsity! Law is everywhere but very difficult to define - Lawrence Freedman• What is law?A) Law creates rules that regulate the affairs among individuals of society Individual = State, corporation, human Law is about establishing rules.1. Rules are established in order to establish pro-social conduct Law is about establishing conduct2. To make law work rules must be associated with sanctions (punishments) Law is about sanctions3. We need a level of social control but also we don’t want too much Law is about establishing social control4. We are interested with laws associated with government 5. Not torture or other illegitimate actions Only interested with laws done in legitimate or constitutional ways6. Law's are backed by the force of the state7. Law is political - Determines winners and losers8. Like the English language.  Law has to catch up to technological changes Law is changing, it is not a constant9. Law is no more or less rational than any other thing created by humans10. Law is not inherently fair11. 11 Point Definition of Law Lawyers Look at the law in a practical and instrumental way They seek to learn the rules1. They criticize the rules2. They learn to change the rules3. They learn to organize the rules4. They learn to apply the rules5. Learn how to manipulate the rules6. A lawyer's job is to represent you and get you through a case. Lawyer uses the law as a tool Lawyers Tells us who were the winners and losers of history• Social Scientists are interested in the origins of law1. When does society have to go from a norm to a rule? How well do rules do what we want? When should a rules become a norm (ex. Prohibition)  Rules and Norms2. Mobilization of rules - study who uses the law and who doesn’t3. Interested in forum shopping - what forum do you go to (51 different legal systems)4. Mediation of Lawyers - effects of lawyers and the outcomes of cases5. Definition of defiance and establishment of social control6. Independent institutional factors7. Difference b/w humans and corporations, genders, races Interested in equality8. Social Scientists Abel - Lawyers vs. Social Scientists view of the law pp 1-10 Started by Romans Created for political reasons to control better Established a universal law for the roman empire• Code of Justinian (553-1453) Between 1453 and 1804 adjustments to Justinian's code came up in different areas Took Justianians code and modernized it• Ended up spreading all over the eastern hemisphere• Napoleonic Code 1804 Code - collection of systemically and logically interrelated articles or statutes• All these eras tried to make a code that could handle any legal dispute  Supposed to solve any problem that may arise in the future Judges are not intended to be creative but rather to find the answer to a dispute In code law there is no reliance on a previous judges decision Romano - Germanic - Civil - Code law Fundamentally different, seeks the same goal but is far less ambitious England, US, Canada, Australia, New Zealand, Honk Kong, Northern Ireland.• India mixes common law with traditions• South Africa has 2 systems side by side, a citizen can choose between the two - either • Started in England. The English took it everywhere they colonized Anglo-Saxon - Common Law 1/19/2011, 3:39 PM • Roots of American LawB) Section 1 Wednesday, January 12, 2011 5:01 PM Section 1 Page 1 South Africa has 2 systems side by side, a citizen can choose between the two - either common law or code law. • Normans Invaded England in 1066 but there were multiple problems after invasion. Normans try to unify the law to solve the problems. They decide that the court would be based in London. They would ride circuit - judges would be based in London but would go to outlying cities periodically . They applied previous decisions to the case. He would come back to London and discuss it with Judges and add it to law.  Stare Decisis - "Let the Decision Stand" (precedent) If there is an earlier decision that can solve the case at hand then use that decision. If there isn't then add a new law to solve the case. Judge made law.  Statutory law - code law. If a legislative body creates a law then that law replaces common law. Statutory law trumps common law.  In code law countries there can be supplemental texts that send a message to judges on how to deal with holes and fix the code  Common Law1. Statutory Law (code law)2. Used to declare our reason for independence1. When people criticize or assess law they used a natural conception2. Fundamental problem - there is no one law we all agree upon3. Natural Law - Not a law that is found in a book, it is a concept based on how the world should operate. Deals with issues like equality fairness justice. It is closely linked to religious beliefs. 3. If you have a legal question the first place to start is in the constitution. It serves as the base. All laws build upon the constitution  The fundamental law of a nation or state. 1) A constitution can be written, unwritten or a combination of the two.2) Tells us whether we are a republic democracy, monarchy, parliamentary, etc. Tells us what kind of gov we have. a) Establishes the character and conception of the government3) Tells the diff elements what they can and cant doa) Regulated, distributes, and limits the powers of diff parts of the gov.4) Responsible for defining the relationship between the government and the people5) Can come explicitly through a constitutional conventiona) Derives its power and legitimacy from the governed or the people.6) Based on a constitution:• Ratified by 9/13 states in 1788.□ Went into effect in 1789 Between 1776 and 1788 we had the articles of confederation that was a failure. Establishes a federal republic - Power is shared by 2 levels of gov, The federal and the state govs. Does not say that those two levels are coequal.  Executive Legislative Judicial Divides power between 3 elements of government: Does not say those 3 branches are coequal - Congress was predicted to be the most powerful, the executive second and the courts third.  First 7 articles deal with governance issues, The 3 branches and how they interact. Framers thought the national government would not infringe on peoples rights 1791 The bill of rights were added, first 10 amendments - deal with rights of the people. 27 amendments added to the constitution. The last one was added in 1992 - deals with congressional pay raises.  In 200 years we've only had 15 (27-10 [bill of rights] - 2 (prohibition)) changes Blends in law Blends in history Blends in ethics Blends in economics Blends in politics  Constitutional law - the prevailing meaning of the constitution as found in the decisions of the US supreme court.  Constitutional Interpretation - Occurs whenever the US supreme court or lower court has a case and the litigants say it is a constitutional case and the court has to give meaning to a word or passage in the constitution. A Common law approach to the constitution.  makes the constitution far more powerful  Civil war amendment A citizen has certain rights and a state cant use its power to affect the privileges of a citizen  Privileges and immunities clause1. 3 important clauses 14th amendment - US constitution• Constitutional Law4. Types of American LawC) Section 1 Page 2 The case has to arise under state law Has to deal with a resident vs. non-resident of the state The federal judge has to use the laws of the original state and not the federal laws Rich rod tried to apply for this but was denied because he was a WV resident at the time of the problems  If a litigant doesn’t like the outcome of the case he can appeal to the US Court of Appeals or in rare circumstances, straight to the US Supreme Court. If you think your case is important enough you can go to the US Supreme court. (ex. US pentagon papers case) Microsoft failed to go directly to the SC when it tried. • Only about 20% of the time the decision is appealed to an appellate court.• 3% are overturned by the higher court. 97% of the time the time the district court stands.• Those 3% are very interesting cases.• After the district courts you can go here• 13 courts in all. 1 for the federal district 1 for distract of Columbia. 11 are distributed nationally. • Not nearly as busy as the other courts. 50,000 cases a year.• Congress has created 179 judgeships. Not all spots are filled. $165,000 salary. Lifetime term unless you are impeached. • 11 circuits, 9th circuit is the largest - 28 judges(most liberal). Smallest circuit is the 1st only 6 judges. • WV is in the 4th circuit (most conservative and includes MD, VA, WV, NC, SC) - 14 judges and is based in Richmond. • Each circuit has a chief judge that is responsible for making sure the court runs smoothly and the workflow is spread evenly. He has the job of assigning random judges to cases in addition to being a judge himself. • Appellate courts look at the case below and see if there are any errors. They do not retry the courts. They use 3 judge panels instead of only one. • The 3 judges vote and the majority vote decides the decision.• En banc (appeal within an appeal) - Says the 3 judges got it wrong and lets the other judges in the circuit take a look at it. Judges in the circuit can call for this along with the losing party after an outcome. If an en banc review is granted all judges would meet (including original 3), the appeal would be made and the whole circuit would make a decision. • Most cases don’t go to the en banc or supreme court.• Only 1% of cases go to the SC after losing here.• Said all law enforcement officers had to inform you of your basic rights upon arrest Decision was not liked by conservatives 4th circuit tried to overturn this decision but the supreme court overturned the 4th circuits decision making Miranda rights applicable to all 50 states.  Miranda vs. Arizona (1966)• US court of appeals○ Trial courts that deal with small matters both civil and criminal1. Handle civil claims under $5000 Handle misdemeanor criminal cases The only state courts where you don’t have to be a lawyer to become a judge.  You have to be elected to the position and then you are trained in the law The gate keepers of people who have been arrested2. If a police officer wants a search warrant they will go here In many states judges have to be on call 24/7 to grant an arrest warrant or whatever Inferior courts• Handle both civil and criminal cases Handle appeals from inferior courts Handle felony prosecutions and civil cases over $5000 Can be various specialization courts - In WV we have a family law court specialization Superior trial courts• Most states (~40) have one Handle appeals from superior trial courts Cases that don’t include important policy decisions Leaves the most important cases to the Stare court of last resort WV doesn’t have one of these courts for budget reasons Lawyers and business groups argue that one crazy judge could make a decision that could not be reviewed  Intermediate appellate court• 52 of them, TX and OK have 2 of them (1 for criminal and 1 form civil) Responsible for being the supreme court for that state.  In states without an intermediate appellate court these courts are extremely busy. These states take appeals from boards (ex workers comp) and superior trial courts If a decision is made entirely on a states constitution and has no impact on other states than the US SC will not hear that case.  If a state SC has an impact on federal law or other states then those cases may be taken by the US SC  Only 2 % of decisions are appealed to the US SC. State Court of last resort • State courts○ 1/31/2011, 3:23 PM Section 1 Page 5 Only 2 % of decisions are appealed to the US SC. 9 members - congress can change this number at any time.• Since 1869 congress has not changed this number• Before 1869 congress would punish or reward the courts, but after the civil war congress has decided not to change it • 8 Associate justices 1 chief justice. (salary of $190,000 and $199,000)• Not much of a difference between the 2 justices' powers.• Court operates from October to June. From Oct 2011 to June 2012 is referred to as the 2011 Term. • Doesn’t separate work by the time period. It hears appeals and writes decisions all throughout the term. • Emergency appeals made out of session go to a justice who then decides if the case should be held and brought up at the beginning of the next term. • Moot - a terms the SC uses to get out of a case• It is highly unlikely that the SC will take your case.• The SC is not interested in particular decisions or parties, they are interested in how the outcome will affect similar cases. • Overwhelmingly but not exclusively an appellate court. It is the trial court in certain cases. (ex. Disputes between the states). This is called its original jurisdiction.  Appoints a special master who is responsible for investigating disputes in original jurisdiction cases. The SC makes its decision based on information from the special master.  Less than 1% of cases involve cases of original jurisdiction. The SC has complete discretion over its cases. You don’t have a right to appeal to the SC unlike in the state systems where you have the right to appeal to the state SC.  Court gets about 7000 requests for cases but only decided on about 150-300. Writ of certiorari - an appeal to the court - Latin for "to make more certain". A legal document that says to the court "I know you don’t have to take my case but I think you should because it is important for American law, and here are the reasons why…"  30% of writs come from state courts 64% come from US court of appeals 2% come from district courts 4% come from other courts (military courts etc)  Petition for review1. Justices rely on clerks (legal assistances to the Judges) who do the reading of the briefs and determine whether or not the justice should look at it. They filter the briefs.  Briefs are circulated2. Chief justice decides that the justices should discuss the case. Other justices can add cases to the discuss list. To get past this stage you need 1 of 9 justices to like your case. 60-70% of cases wont get on the discuss list In any stage, if the justices refuse to take a case then the decision below is left untouched. This doesn't mean the decision below is supported by the SC.  Development of the discuss list3. 9 justices get together (by law only the 9 justices are allowed in the conference room)  What happens in the conference stays in there. It is made confidential so their decisions can be made honestly.  Diaries are made and sometimes released to the public years later Chief justice does not control what the other justices say or promote Rule of 4 - 4 justices are need to say the case is worthy for trial Rule 10 - If decisions from 2 courts differ they are more likely to take the case SC will take cases where there is a disagreement in the justice department Initial conference4. Explaining to the court why you should win and they should lose Amicus curiae brief (friend of the court) - 3rd party brief who is interested in the case and wants to give his/her opinion of the court. You have to ask the courts permission to submit the briefs. Courts like these because they bring information to the court from outside. This a fairly expensive process  Case is granted review on the merits - submission of brief on the merits5. Half of cases skip this stage Only public step of the process. Very strict rules - Each attorney has 30 minutes to make his case. Justices can ask question during this time that sometimes try to freeze up the lawyer.  Case moves onto oral argument6. Has to occur within 1 week of the oral arguments. Justices start to make their positions know Take an initial vote on the merits Conference on the merits7. 10 Steps to a Supreme court opinion:• US Supreme court○ 2/2/2011, 3:46 PM Section 1 Page 6 Justices start to make their positions know Take an initial vote on the merits If the Chief justice is in the majority he has the power to decide who will write the opinion. Is he isn't then the most senior justice in the majority gets to choose.  Chief Justice make sure there is equal distribution of the opinions He also makes sure that experts in certain areas write opinions in that area He has to satisfy associate justices  Tries to makes sure no one leaves his side when assigning an opinion so he often assigns the opinion to a less extreme judge.  Chief justices get more than 1/9th of opinions Majority opinion - An opinion that speaks for the court and why they made their decision  Concurring opinion - Agrees with the outcome but not the reasons why it was decided.  Dissenting opinion - written by a dissenting justice After all the opinions the court makes a final decision Opinion assignment and writing8. Usually just a release of the opinion in the paper or web Public announcement of the decision9. SC doesn’t implement its decisions Returns the case to the court from which it came and lets the lower court implement it.  Case is remanded10. The way we think about the law has changed fundamentally throughout history○ Real struggle over democracy and anti-democracy• Legal world was significantly more conservative. Legal community was fixated on the right of property. • Lawyers saw the law as protection of capital• "Discovered law" - law is has nothing to do with politics, it is impartial, it is a constant. Lawyers and Judges are the only fair and true interpreters and creators of the law. • Lawyers would argue that if the rich win more than the poor, that is simply the natural outcome • Law was created to protect private capital from the government.• Pre Classical (1776-1885)○ One shift - legal community realized that the relationship between the government and private capital was too hostile. Maybe the should be allowed to encroach on private capital. • What stayed the same - law is impartial, law is still a constant, law is apolitical • Law shifted from common law to statutory law, something not favored by lawyers.• Classical (1885-1935)○ All about tearing down the 2 previous views. Attack what they said.• Industrial revolution brings a fundamental change to the nature of capital • Law is subjective - it is created by humans□ Law = policy - there is no distinction between law making and policy making. Judges decisions make law just like congresses decisions □ NO distinction between private law and public law□ Lawyers and judges do have policy and political preferences □ Based on simple ideas:• Self Restraint approach - Judge says there is no one right answer, there are choices to be made. Decision making allows policy creation, but that doesn’t mean that he will let his political preferences interfere with his work and decisions • Activist judge - Says in our system of government, the judiciary is one branch and when I can, I will make policy. Judges have a right to do this. • Realist (1920-1935)○ US court of appeals judge based in Chicago□ Played QB for the bears when Cutler got hurt□ Teaches law at 2 of the best American universities□ Very prominent author□ Wants to use microeconomics in law - they give us an objective view of the world□ Reduce government bureaucracy1. Biological moms are better off2. Biological children are better off3. Society would benefit from new adopting method:□ Touches the idea of slavery1. Can allow bad parents to adopt kids or prevent the good ones from it2. Critics argue: □ Posner - Right of the spectrum - Approach economic theories of justice• Agrees that there is no legal truth.□ Thinks feminist legal theory should replace orthodox legal theory□ Based on the idea that women are oppressed by men, fear down patriarchy, women should be given headstart to create true equality between men and women. □ 1st amendment - absolute right to say, write, and practive whatever you want. Congress Mackinnon - Left - Feminist legal theory • Post realist (1940-now)○ History of Mainstream American Legal ThoughtE) 2/7/2011, 3:39 PM Section 1 Page 7