Chapter 1

A. Sources of Laws

1. Common Law

product of case decisions (judge made)

"discovered law"

principles to guide future cases based upon common customs of the people

"common sense"

transition to common customs of the court (judges)

looking to past decisions (precedent)

precedents are not absolute, they can be modified or overruled

can lead to the creation of laws

Lawsuits

Plaintiffs – party that brings the suit

Defendants – party the suit is brought against

Suits can be tried, settled or dismissed

2. Law of Equity

Like common law

The difference is that equity law comes by judicial decrees

(no juries) (often needed quickly)

Ex. Restraining orders, warrants,
injunctions

A balancing of rights

Ex. Custody cases

3. Statutory Law

derived from legislative action (Federal, State & Local)

statutes deal with more general, large scale issues

statutory law is collected in codes

courts interpret statutes

common law kicks in after the offense, statutory law can anticipate the offense

4. Constitutional Law

derived from the Constitution (Federal and State)

specifies what government can and can't do

the highest authority

"No one can say with certainty what any part of the U.S. Constitution means until the Supreme Court has decided what it means in a particular case."

The power of judicial review (interpreting the Constitution)

increasing power of the Supreme Court over legislative manners

Where do rights come from?

see the Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,"

constructionism (based on original intent and Natural/Divine law)

also called Originalism, or followers as Originalists

judicial activism (based on relativistic standards) "what does the law mean today?

do these methods of interpretation sound familiar?

what view does our textbook hold? (p. 50)

what view does President Obama hold?

(from The Audacity of Hope) - much of the Constitution speaks in generalities that cannot tell us what the Founding Fathers would have thought about modern dilemmas: whether, for example, the National Security Agency's data mining is constitutional, or what freedom of speech means in the context of the Internet.

"Anyone like Justice Scalia looking to resolve our modern constitutional dispute through strict construction has one big problem," Obama writes. "The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece."

Trump?

Biden?

5. Administrative Law

created by enabling legislation (administrative agencies)

day to day oversight

create regulations (with the force of law)

considered experts (and judges are reluctant to overturn their regulations)

What's missing?

The Legal System:

Facts and law

trial courts - fact finding

appellate courts - law reviewing

Dual System of Courts

1. State (varies slightly by state constitution)

a. small claims, municipal courts

b. district, circuit courts

c. appeals courts - questions of law

d. state supreme court - last venue unless a federal issue is present

getting cases to a federal court (see text)

2. Federal

a. district courts (94)

trial level

b. circuit courts (Court of Appeals) (13)

what circuit is Minnesota in?

can hear cases in a 3 judge panel or en banc (11 judges)

judges at the federal level are appointed by the President

confirmed by the Senate

for life

can be impeached

can be politicized

c. Supreme Court

9 justices appointed for life

why?

Acts as a trial and appellate court (but rarely conducts trials)

3 ways to get a case to the Supreme Court:

a) direct appeal (now limited by law)

b) certification (lower court asking the SC for clarification)

c) application for a writ of certiorari

most common (about 5000)

(asking the SC to order a lower court to deliver its file on a case for review)

the Court can accept or reject this petition

about 100 cases a year starting in October

"ripeness"

decision process:

majority opinion

concurring opinion
(in whole or in part)

dissenting opinion
(in whole or in part)

per curiam opinion

strength of the opinion (9-0 vs. 5-4)