What is Law?
A system to settle disputes. Primarily law serves to keep society orderly and is a system for settling disputes without violence.
5 sources of American Law
1) Common Reactive Laws: A system derived from England. Common reactive laws are an example of an “Inductive System of Law” (rules are developed over time after judges decide similar cases). There is a constant change in common reactive laws. i. The term “common” is used because its supposed to apply universally ii. Also used to distinguish from Ecclesiastical (Church) Law iii. Also called “Judge Made Law”- rules are made by judges who look to past cases 2) Equity Law: Emphasis on fairness. Role of precedent s more limited. Historically, it’s separated from law court but not they are joined. Equitable remedies include: iv. Temporary Restraining Order: stopping action while case is still pending. Action is halted once courts decide legality v. Preliminary Injunction: after case is done, the defiant is prevented from ever repeating action. Can be preventive or remedial 1. Preventive: stopping before it happens (difficult to get preventive injunction) a. To get preventive injunction, direct, immediate and irreparable harm must be present. Example: Coke Trade Secret 2. Remedial: stopping after it had already been done 3) Statutory (Preventive/Proactive) Law: Deductive system. Created by legislation and universally applies to and affects large groups of people. Attempts to anticipate problems before they happen. Rules are created beforehand. 4) Constitutional Law: US constitution is SUPREME LAW. Constitution > State Law, Constitution > everything. vi. Constitution outlines duties and responsibilities of government vii. Guarantees basic rights
viii. Organize and establishes the government
5) Executive Orders/Administrative Rules: Administrative Law deals with executive branch of government ix. Executive orders: legal order by executive officer x. Deductive system: rules are created first before scenario. Judges then take that already established rule and judge the scenario based on that. “Stare Precisis”- let the decisions stand (Common Law).
Theoretical decision making ideal, constantly looking to past decisions. Provides predictability in Law System. Also proves Judicial Legitimacy- that Judges are treating every scenario and individual fairly.
In Common Law, judges constantly look to past cases to influence their judgment. Rely on precedents (past cases)
2 types or precedent:
1) Binding Precedent: court must follow rules of previous case 2) Persuasive Precedent: court can look at past case and choose (use certain parts) or just not follow it 4 ways to deal with Precedents:
1) Accept or follow: look to previous decision and follow 2) Modify or update: court agrees with rule but changes it slightly 3) Distinguish: court will look to previous decision and conclude that the case is different and rules do not apply 4) Overrule: say that rule no longer applies, disagreement with reasoning. However, if the precedent is a Binding Precedent, there is no option to overrule or modify. A decision of a higher court is binding to a lower court. Example: Sodomy Law
Overlap between common law/statutory law: judges called to interpret. Common problem with statutes-they are often not clear. Judges must define rule/statues based on cases. “It is illegal to distribute violent video games to minors”. Interpretation of rule is iffy. What is violent? What are minors? Judges must define rules.
2 Primary arguments against statutes:
1) Void for vagueness: statute isn’t specific enough in type of conduct or speech that it prohibits 2) Over breath: statute isn’t aimed specifically enough at problematic conduct. Prohibiting speech that should be...