Hazel G. Sturdebant
PAPER TITLE: the common law tradition and sources of law
I. THESIS STATEMENT:
A. Common law is a legal system that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials. The reasoning used to interpret this type of law is known as casuistry, or case-based reasoning. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Decisions that were made about similar cases are valuable, and the case in question is evaluated on the basis of past cases. The strength of the similarity among the cases, in turn, strengthens the reasoning based on them. B. The term "common law" also underlines the fact that this type of law did not originate from equity, maritime and other special branches of law. Statutes serve as brief explanations of law and therefore are not very explanatory. Codification is the process by which a statue is passed, expressed within a single document, so that it is understood within existing law rather than creating the need for new laws. C. The common-law system prevails in England, the United States, and other countries colonized by England. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people.
II. WHAT IS COMMON LAW?
A. Common Law is the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
III. WHAT ARE THE SOURCES OF AMERICAN LAW?
A. The United States Constitution and the constitutions of the various states B. Statutory Law - including laws passed by Congress, state legislatures, and local governing bodies. C. Regulations created by administrative agencies (such as the United States Food and Drug Administration). D. Case law and common law doctrines.
E. Secondary sources of law are books and articles that summarize and clarify the primary sources of law (i.e., legal encyclopedias, treatises, and articles in law reviews).
Several SourcesConstitutional, statutory, and case law—these are your tools. The United StatesConstitution is the overriding document. It is the Supreme Law of the Land. Eachstate has its own constitution. State and federal statutes are interpreted by judgesthrough case law. These sources play in each practice area. For example,constitutional law governs searches and seizures in a criminal matter. Statutesprovide the framework for real estate transactions, and case law interprets andapplies both constitutional and statutory law. There is much to learn.|
A. The Federal Constitution
i. The United States Constitution, as amended, is the supreme law of the land. ii. A law in violation of the United States Constitution will be declared unconstitutional and will not be enforced. iii. The United States Constitution sets forth the powers of the three branches of the federal government and the relationship between the three branches. iv. Constitutional Rights
1. The first ten amendments to the United States Constitution are commonly known as the Bill of Rights. v. The Courts and Constitutional Law
1. The broad principles enunciated in the Constitution are given form and substance by the courts. 2. Courts Balance the Right to Free Speech
a. Even though the First Amendment guarantees the right to free speech, the Supreme Court has made it clear that certain types of speech will not be protected. 3. Free Speech and the Internet
a. The Internet has raised...