ULAW - Introduction to American Law

Legal System Essentials 

• Primary and Secondary Rules 

  • Public Law (Criminal) 

    • Relationship with the government 

    • The government calls all the rules 

      • Can the government break into your house and search it? Comes down to the public law question 

    • ACLU and public organizations 

  • Private Law (Tort) 

    • Consists mostly of primary rules 

    • Non-governmental type people 

      • People and private businesses 

        • Under what circumstances can I enter an agreement with someone to paint my house to sue them if they do not finish the job; contract 

  • Power-conferring Rules

    • Hart makes a came that PCR are important phenomenon in legal studies 

      • Failing to account for them dooms J.L. Austin's Command Theory of Law 

    • How to get an agreement to get the power 

      • Could be about public and private law 

• Rules of Adjudication 

  • Procedural Law 

    • How disputes get resolved 

    • Federal Rules of Civil Procedure 

      • Tell you what to do if, for example, I want to sue someone if they run into me 

      • Process for the procedure: setting it up, suing, court, payments, etc

    • Rules of Evidence

      • Tell you what you can and cannot show to a jury 

      • What witnesses and questions you can bring up  

    • Constitutional Law 

  • Power-conferring Rules 

  • Judicial Reasoning 

    • A lot of this reasoning is driven by moral principles 

      • Penumbra 

        • Hart focuses on this (discuss this further) 

      • Often concerns itself with a problem that Hart highlights as a problem with language 

        • Language is imprecise 

        • Legislators who write laws cannot predict every single type of thing that people might do 

        • Want to cover as much ground as possible 

        • Laws that are vague and that are poorly written 

    • Rules vs. Principles 

    • Open-texture/interpretation 

    • Precedent 

• Rules of Change 

  • Because we are a common law system, we do have some laws that are made by judges 

  • Limits/Guidelines for judge-made law 

    • Private law areas 

    • Must keep the laws in check 

• Rule of Recognition 

  • Constitution and more 

    • Not reduced to the constitution 

    • Has to contain some criteria for what is legally binding and what is not 

  • Contested Concepts 

• Institutions 

  • Courts 

  • Legislatures 

  • Regulatory Agencies

    • 4th branch of government? 

    • So big and so powerful that some people consider it the 4th branch of government 

    • IRS, trust department 

    • Make and enforce laws 

    • Got courts inside the agencies that adjudicate laws of certain agencies 

    • Tax court inside the IRS inside the treasury department 

  • What happens when the courts and the legislatures fight  

• Basic Commitments 

  • Prospective, not retroactive 

    • They should be forward-looking

    • Should look light 

  • General, not specific 

    • General law, one that applies to all or most in the country 

  • Public, not secret 

    • Committed to the idea that secret laws are bad 

    • Notice what people's obligations are 

    • Want people to follow the law; cannot have structure if they do not know the law 

    • Allow for informed public view of things 

    • Know that secret laws facilitate government abuse 

  • Law serves as a way to mediate or involve itself with, conflicts of value so one good way to try to understand the system is how the parts of the system enable us to work with competing values 

  • What do we do when our interest in knowing the truth 

• Questions of Value 

  • Truth-seeking vs. Efficiency 

  • Uniformity vs. Pluralism