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Law: The Building Blocks of Societal Order

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by

Detria Moore

on 9 May 2017

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Transcript of Law: The Building Blocks of Societal Order

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Origins of the Law:
(1) England
(2) Iroquois Native Americans
(3) Blend of others
NOT SOURCE, but origins
Sources of Law
1. Constitution
(a) federal
(b) state
2. Statutes
(a) federal
(b) state
3. Common law (judge made law)
4. Court Orders
5. Administrative Law- same weight as legislative statutes
6. Treaties- same weight as federal statutes
Classifications

Law: The Building Blocks of Societal Order
Difference between Civil and Criminal
Different types of law



Language used



Who initiates the case?



What is the outcome?



Burden of Proof
CIVIL
CRIMINAL LAW
Private rights; 2 private individuals or entities



Plaintiff vs. Defendant; liable, culpable




A private person (plaintiff)




Outcome is financial




Preponderance of the evidence (65%)
Non civil law; harm against society as a whole, not individual



Prosecution, guilty/not guilty, innocent




State (or people) initiates the case




Outcome can be financial, loss of freedom, or loss of life




Beyond a reasonable doubt (95%)
Civil vs Criminal
* Some conduct can be classified as both (OJ Simpson)
Law and Morality
Law versus Morality
Different but overlapping
Some things we find immoral we have codified into laws
But not all immoral or unethical behavior is criminalized
How much does (and should) morality play in enacting laws? {Murder vs. transgendered bathrooms}
Should we impose a duty to help? (see next few slides)
Jurisprudence
JURISPRUDENCE
Jurisprudence- the philosophy of law
Legal Positivism- law is what the sovereign (those in power) say it is
no questions asked
don't really consider morality
referendums, for example
Natural Law- recognizes that the law must have a moral basis; an unjust law is no law at all
law should encompass something outside ourselves
appeals to our moral sense to 'seek after good'
but who defines what's good?
Legal Realism- What's most important is the person enforcing the law
judges and juries, and their personal make-up will more likely influence the law
biases will influence the outcome
extreme view says they'll use their influence to control the outcome
A Closer Look at Common Law, Statutory Law, and Administrative Law
Statutory law- law that's been codified (written and enacted) by a legislating body
(a) you can find it in the code
(i) federal statutory law
(ii) state statutory law
(iii) local laws (ordinances)
(b) most law is written
(i) review the process for how a bill
becomes a law (4-2a through 4-2g)
(c) courts are tasked with interpreting statutes.
How do they do this?
(i) plain meaning rule
(ii) legislative history and intent
(iii) public policy


(a) precedent- cases that have been previously decided
(b) stare decisis- the principle that courts should follow precedence
(c) predictability vs flexibility
(d) Bystander Duty- is there one?
(i) Generally, no
(ii) but there are exceptions:
(1) You caused the harm
(2) You're an employer, and in your presence, an employee
suffers harm
(3) statutory law gives you a duty (parents to children;
therapists; don't stand in the way of someone contacting authorities)
(4) see how the courts have shaped this law? That's
Common Law!
(e) So what are Good Samaritan Laws?

Common Law- sum of all cases decided by appellate courts; a lot of business law (contracts, agency, tort law, etc.) comes form common law.
A Closer Look at Common Law, Statutory Law, and Administrative Law (con't)
A Closer Look at Common Law, Statutory Law, and Administrative Law (con't)
(a) alphabet soup of gov't
(b) often seen as the 4th branch of gov't
(c) affects almost every area of our life
(d) while congress passes statutes, admin. agencies regulate them (experts)
(e) 2 types:
(i) executive
(ii) independent
(iii) important to know the difference
(f) enabling legislation creates and sets the tone for the administrative agency
(g) main powers of administrative agencies:
(i) rulemaking- their laws carry the same weight as
laws passed by congress
(ii) investigating- their ability to gather information;
and use tools like subpoenas, search and & seizure
(iii) adjudication- to hear cases like a court
would
Administrative Law- the branch of law governing the creation and operation of administrative agencies (state and federal)
* But there are limits on these agencies
Litigation versus Alternative Dispute Resolution
Litigation- process of filing a lawsuit and going to court to settle your dispute. Need to know how our court system works
(a) federal and state courts; at least 1 federal court in every state
(i) jurisdiction- the courts authority to hear a case (personal, geographic, topical, etc.)
(b) different court levels for federal and state courts
(i) trial- lowest level; fact finding court
(ii) appellate- higher level court that reviews the fact of the lower court
(iii) supreme- highest in the state; US Constitution is the supreme law of the land
(c) Federal courts jurisdiction
(i) Federal question- a case based on the US Constitution, a federal statute, or federal treaty
(ii) Diversity- plaintiff and defendant are citizens of two different states AND the amount in controversy is MORE than $75,000
(d) How does a case get started?
(i) pleadings
(ii) discovery
(iii) trial
(1) Jury selection (voir dire), must be fair
(2) opening statement (since plaintiff has burden they always go first)
(3) Plaintiff's direct examination
(4) Defendant's cross examination
(5) Defendant's direct examination
(6) Plaintiff's cross examination
(7) Closing arguments
(8) Jury instructions
(9) Verdict
(iv) Appeals ?

Alternative Dispute Resolution (ADR)- using an alternative process to litigation

Remember the Acronym
N
o
M
ore
A
ttorneys! Each first letter stands one form of ADR and it happens to be order of least to most formal process.

Negotiation- two parties trying to settle the dispute themselves (or through attorney's); most simplest form; least formal

Mediation- two parties try to settle a dispute, but enlist a 3rd party (mediator); mediator guides; fastest growing ADR method

Arbitration- two parties try to settle a dispute, but enlist a 3rd party to actually decide the matter; could be binding; most formal

Litigation versus Alternative Dispute Resolution (con't)
Pro's and Cons of ADR
Pros
ADR is faster and less expensive
Businesses may want to avoid the uncertainty of a jury
Businesses may not want to set precedent by going to court
Businesses may prefer confidential nature of ADR

Cons
Might be difficult to appeal to courts afterwards
No record of case like in court (hiding issues from the public)
Give up your discovery
Ready to answer questions
Full transcript