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Civil Law
describes a legal system based primarily on written constitutions and written laws or codes
Common Law
is a legal system based on precedent or case law
Code of Hammurabi
This is an example of a civil law system that dates back to
the Babylonian Empire.
+ This Code contained rules that governed different aspects
of society, including criminal laws, domestic relations, and
contract laws.
Stare Decisis
+ This is another term for precedent.
+ Laws originate from decisions of courts rather than legislative bodies.
+ Precedent requires courts to follow decisions of earlier courts.
+ It is the basis of common law.
What is the law?
consists of a set of rules and procedures usually intended to regulate some aspect of society
Philosophical Theories
The philosophy of law, also known as jurisprudence, deals with a multitude of questions related to the origins of law, the meaning of law, and the relationship of law and morality.
The Natural Theory of Law
+ Law reflects moral and unchangeable laws of nature.
+ When a law fails to do this, it is unjust and need not be obeyed.
+ Philosophers such as Aristotle, Socrates, and Thomas Aquinas held this theory.
Legal Positivism
Under this theory, the validity of a law is not related to
morality.
+ If a law is properly created or enacted then it is valid.
Legal Realism
+ This theory is based on the belief that men create laws and therefore laws are subject to pitfalls created by men.
+ In particular, these philosophers believe that judges applying their personal beliefs and biases often mold laws.
How do we categorize the law?aw?
whether the law is constitutional law, statutory law, or case law
whether the law is substantive or procedural
whether the law is criminal or civil
Sources of Law
a constitution
a statute
a case decision
statute of limitations
a statute of limitations is a time limit for filing a lawsuit in court
Substantive Laws
define the rights and duties of parties and establish the legal basis for any lawsuit
ex: a law that burglary a crime
Procedural Laws
dictate how a case should be handled once a dispute arises under the substantive law
ex: a law that gives anyone accused of burglary the right to a jury trial
Criminal
moving party is the government
result of lawsuit is punishment
Civil
moving party is victim
result of lawsuit is typically money or specific performance
Interaction between categories
+ All three categories interact with each other meaning you can have criminal laws that come from statutes as well as civil rights from constitutions or substantial criminal laws and procedural civil laws, etc.
Crimes
+ Substantive criminal laws deal with crimes.
+ Procedural criminal law deals with due process.
Procedural Due Process
the existence of a law that prohibits the conduct in question before the
violation occurs;
a law that is sufficiently certain and clear so that an individual is capable of
knowing what is permissible and what is illegal;
a specifically described penalty that is to be imposed in the event a person is
found guilty.
Substantive Civil Laws
+ These can include a variety of topics:
+ Family law
+ Wills
+ Personal Injury
+ Contracts
Rules of Court
+ Most substantive areas of law have their own procedural rules which are called rules of court.
+ This is true on the state and federal level.
Jurisdiction
This refers to the ability of a specific court to hear a case.
Civil Court Procedures
Preponderance of the Evidence
Standard: in a civil case a jury must decide the case based on a scale of 50% plus a feather. defendant in a civil case is found liable.
Criminal Court Rules
Beyond A Reasonable Doubt: in a criminal case a jury must decide the case based on a scale that is 99% sure. A defendant in a criminal case is adjudicated guilty.If the jury finds no guilt, then the defendant is acquitted
Indigency
+ In a court case, if a defendant is too poor to pay for an attorney, they may get a free
attorney in a few circumstances.
+ -Criminal Case
+ -Delinquency Case
+ -Eminent Domain
+ -Dependency Case
Expressed Powers
those powers given to the Federal Government expressly through Article I Section 8 of the United States Constitution
Implied Powers
powers created by Congress through the exercising of its expressed powers.
10th Amendment
The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States, respectively, or to the people.
Expressed Powers
Collect Taxes
Borrow Money
Establish Post Offices
Declare War
Raise an Army
Copyright and Patents
Commerce Clause
This clause gives the federal government the right to regulate Poweinterstate commerce
Preemption
the federal government has the exclusive right to regulate a particular subject area.
Ex post facto laws
make a person criminally responsible for an act that was committed before the act was made a crime
Examples of State Powers
criminal conduct,
contractual relationships,
civil tort liability,
forms of business such as partnerships and corporations.
Jurisdiction
the power of government to regulate
Exclusive Jurisdiction
exclusively allowed to regulate whether it’s state or federal government.
Concurrent Jurisdiction
When both state and federal governments have the right to regulate an area
Supremacy Clause
a conflict exists between state and federal law, federal law will always
control.
Branches of Government
Executive, Legislative, Judicial
Separation of Powers
Each branch has their own power to operate in the government. The executive branch enforces the laws, the legislative makes the laws, and the judicial interprets the laws.
Executive Branch
branch of the federal government consists of the president and the president’s cabinet.
The president’s cabinet includes the heads of fifteen executive
departments—the secretaries of Agriculture, Commerce, Defense,
Education, Energy, Health and Human Services, Homeland Security,
Housing and Urban Development, Interior, Labor, State,
Transportation, Treasury, Veterans Affairs, and the Attorney General.
government also consists of the various
federal law enforcement agencies.
The primary responsibility of this branch is the execution and
enforcement of the laws.
Legislative Branch
branch of government consists of the House of
Representatives (whose members are called representatives or
congresspersons) and the Senate (whose members are called
senators). This is called a bicameral system.
Representatives and senators are elected by citizens of the district and
state they represent and serve two- and six-year terms, respectively
The primary responsibility of this branch is to make laws called statutes
or codes.
Judicial Branch
The judicial branch of the federal government consists of the various
federal courts.
The role of the judicial branch is to apply or interpret the laws in
relationship to actual cases.
However, in doing so many say the courts make law.
Many say this is the most powerful branch of government.
State Level- Governor
he head of the executive branch at the state level with numerous sheriffs and police commissioners throughout the state
State Level- Legislative Branch
Senate and House
Local Government
there are smaller governments for counties and cities.There are officials here as well such as commissioners or mayors who run local politics.
Sources of Law in the US
stare decisis
constitutions
statutes
codes
Limitations on Stare Decisis
Stare decisis applies only when a lower court is faced with a factual
situation that was decided by a higher court.
Decisions of state courts are stare decisis only within the state where
they are decided.
Stare decisis applies only when the court orders that the opinion be
published.
In those situations where these limitations do not exist, stare decisis
creates binding case law.
Steps in Creating a Law
Legislation Proposed—> Bill Introduced —> Bill Referred to Committee—> Bill Voted on legislators—> action by other house—> executive options
Initiative
a process for voters to pass a law
referendum
state legislatures can also propose laws that need voter approval
Statutes at Large
laws are published on the federal level
Session Law
laws are published on the state level
Ordinances
laws are published at the local government level
Administrative Regulations
While the power of the executive is to enforce laws, from time-to-time different agencies will create their own rules for governing citizens.
For example, the IRS creates rules for taxpayers to follow.
The agencies also have their own judges to interpret rules.
In this way, an administrative agency who is an extension of the executive branch fulfills all three powers of government.
The Federal Court System
United States Supreme Court – Circuit Courts – District Court
Bench Trial
In rare circumstances, a bench trial occurs where the judge is both determines questions of law and questions of fact.
Diversity of Citizenship
the action is between residents of different states and the amount in dispute exceeds $75,000.
Bankruptcy Court
a court handling bankruptcy proceedings
U.S. Court of International Trade
a court that handles cases involving international trade and custom duties
U.S. Claims Court
a court that hears suits against the federal government for money damages in numerous civil matters
U.S. Tax Court
a court that handles controversies between taxpayers and Internal Revenue Service involving underpayment of federal taxes
En Banc
all judges in a circuit may hear a case
Record on Appeal
a written transcript of the entire trial is provided to the appellate attorneys
Briefs
the attorneys create written arguments
Jury Instruction
statements of law read to the jury at the end of the trial.
Affirm
uphold the trial court’s decision
Reverse
change the trial court’s decision
Remand
send the case back to the trial court for a retrial with instructions regarding the procedure to be followed.
Jurisdiction
It hears cases from the lower federal courts.
It can also hear cases that originated in the state courts if the case involves a constitutional issue or a question of federal law
Petition For Writ of Certiorari
The Supreme Court cannot hear every case it is asked to hear.
• A party must petition the court to hear their case and set out their reasons for requesting a hearing.
• The justices then vote to determine if the case will be heard.
• At least four of the justices must vote to hear the case or grant the petition for writ of certiorari
Exceptions to Role of Appellate Court
In very rare circumstances, the US Supreme Court does have original jurisdiction.
This happens in cases involving ambassadors or when the states are the party (Florida vs. Georgia)
State Court Systems
While state courts differ from state to state, most follow the federal example and have trial courts, appellate courts, and finally a supreme court.
• Broward County Court – 17th Judicial Circuit – 4th DCA –Florida Supreme Court
The Federal Judiciary
• These individuals are the federal judges who hear cases at the federal level.
• The President appoints theses judges, and they are then confirmed by the Senate.
• Once confirmed, they serve for life.
Magistrates
individuals who are appointed by judges to handle minor issues in the judicial system to help free up judges for more important matters
State Court Judges
State court judges can obtain office in a variety of ways depending on what the state’s law says.
• In Florida:
• Governor can appoint judges
• Individual can run in a nonpartisan judge race
• Voters can vote to keep or remove a judge
Judicial Assistants (JA’s)
secretaries for the judges
Clerk’s
serve as the record keepers of all information in a court file
Court Reporters
take down all the verbal information during a court procedure to potentially type it up later into written form
Bailiffs
provide safety and order within the courtroom
Paralegals
individuals whose training and education enable them to assist lawyers by performing various legal tasks , they cannot practice law
What is the practice of law?
Represent someone in court, at a disposition, or other legal proceeding
Provide legal advice
Signing legal documents
Law Office Administrators
often manage larger law offices, corporate legal departments, and some law-related government agencies
These individuals work to assure the delivery of quality and efficient legal services
In addition to some legal education, this profession often calls for a strong business background.
Law Clerk
refer to law students interning or working in the law firm while attending school, jobs often involve considerable legal research and preparation of legal memoranda
legal memorandum
is a written explanation and analysis of factual and legal problems
Enrolled Agents
non lawyers who represent other in administrative hearings
Certified Legal Interns
law students/graduates who operate under lawyers
American Bar Association
is a national organization that strives to promote high professional standards within the American legal community and to safeguard the administration of justice to the public.
Florida Bar
the organization that licenses all attorneys
Broward County Bar Association
local group of attorneys practicing in Broward County
American Association of Trial Lawyers
is a national professional group consisting primarily of litigation lawyers
National Federation of Paralegal Association
is primarily a national organization consisting of local paralegal associations, although individuals may join
American Association for Paralegal Education
is a national organization of paralegal schools and educators
Ethics for Judges
Judicial Conference of the United States can impose some discipline but has no authority to remove a judge from office.
• Federal judges can be removed only through the impeachment process.
• The federal judicial conference can recommend that Congress institute impeachment proceedings.
Cannons of Ethics
A Judge Should Uphold the Integrity and Independence of the Judiciary
• A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
• A Judge Should Perform the Duties of the Office Impartially and Diligently
• A Judge May Engage in Extra-Judicial Activities to Improve the Law, the Legal System, and the Administration of Justice
• A Judge Should Regulate Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Duties
• A Judge Should Regularly File Reports of Compensation Received for Law-Related and Extra-Judicial Activities
• A Judge Should Refrain from Political Activity
Code Of Conduct For Judicial Employees
a judicial employee should uphold the integrity and independence of
the judiciary and of the judicial employee’s office
. a judicial employee should avoid impropriety and the appearance of
impropriety in all activities
a judicial employee should adhere to appropriate standards in
performing the duties of the office
Ethic for Lawyers
When a lawyer agrees to represent a client, a special relationship is created between the lawyer and the client.
• This fiduciary relationship means that the attorney must exercise the highest degree of trust and care with that client.
• The relationship carries with it various duties or obligations for the
attorney in handling the case.
Elements of the Fiduciary Relationship
• Confidentiality - The duty of confidentiality requires that the attorney not reveal the content of any communications that are intended to be private.
• Competency - Competency requires that attorneys have the requisite legal knowledge to handle a case.
• Conflict of interest - A conflict of interest occurs when the attorney cannot give all of his or her loyalty to the client because of some personal or financial relationship that exists.
Potential Conflicts of Interest
An attorney or law firm wishes to sue a party that they currently or in the past have represented.
• An attorney or member of the law firm has a personal relationship with someone who works in a law firm on an opposing side in a lawsuit (or potential lawsuit).
• A financial or business relationship exists with a client or with someone who may be an opposing party in an action.
Fees
In most cases, attorneys can charge clients any fee, as long as the fee is not “unconscionable.”
• Unconscionable is not easily defined. However, it is clearly not the same as reasonable.
• Attorneys are not allowed to share a fee with a non-attorney, including a paralegal.
Note
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