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Chapter 1 Introduction to Law. Class Discussion: What is Law?. Small Group Assignment 1. What evidence does the book cite to support the assertion that “law is essential”? Approximately how many of the states (in the United States) permit live television coverage of real trials? . 3.

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Chapter 1Introduction to Law


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Class Discussion:What is Law?


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Small Group Assignment 1

What evidence does the book cite to support the assertion that “law is essential”?

Approximately how many of the states (in the United States) permit live television coverage of real trials?

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Small Group Assignment 1

How many years ago was England in its “Anglo Saxon” period?

During what period of England’s history did each party to a lawsuit have to provide “oath helpers”?

In what year did Henry de Bracton write “On the Laws and Customs of England”?

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Common Law System

A legal system based on stare decisis, in which many important substantive rules of law are formed by individual judges through “first impression” decisions.


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Civil Law System

A legal system in which laws are written by scholars or legislators, codified, and not determined in any part by judges.

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Small Group Assignment 2

What do substantive rules of law state?

What do procedural rules of law tell?

List three issues of procedural law.

In what year was “The Oculist’s Case” tried?

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Substantive Rule or Procedural Rule?

You may not drive faster than 35 miles per hour on Stevens Creek Boulevard.

Murder is forbidden.

Rape is forbidden.

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Substantive Rule or Procedural Rule?

Armed robbery is forbidden.

Any evidence you obtain against your neighbor (for your lawsuit against him) by burglarizing his house shall be inadmissible in a court of law.

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Substantive Rule or Procedural Rule?

Any evidence the state obtains against you (for use in a criminal trial) by searching your home without a search warrant shall be inadmissible in a court of law.

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Substantive Rule or Procedural Rule?

If you file your lawsuit after the “statute of limitations” on the harm done to you has run out, your lawsuit will be thrown out of court.

If you are the defendant and you fail to appear at a hearing to which you have been called, the judge is permitted to enter a “default judgment” against you.

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Substantive Rule or Procedural Rule?

If you punch somebody in the nose for no reason, the law will require you pay them a sum of money to compensate them for the harm you have caused them.

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The Oculist’s Case (1329)

What were the facts that led to this case? Answer:

An Englishman went to see a doctor, seeking treatment of his eye. The doctor used “herbs and other medicines” to treat the eye, and the patient became blind in that eye.

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The Oculist’s Case (1329)

What was the centrallegal issue in this case?

Answer:

Does the law require that this doctor pay a sum of money to this patient under the facts that have been established in this case?

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The Oculist’s Case (1329)

What subsidiary legal issue is raised by the attorney for the defense, Mr. Launde? Answer:

Does the law require that this judge dismiss this case under the facts that have been established in this case?

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Small Group Assignment 3

How does Legal Positivism answer the question “What is law?”

How does Legal Positivism answer the question “Where does law come from?”

How does Legal Positivism answer the question “How can we tell if a law is valid?”

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Small Group Assignment 3

How does the theory of Natural Law answer the question “Where does law come from?”

How does the theory of Natural Law answer the question “Which laws are valid?”

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Schools of Jurisprudence

Legal Positivism

Natural Law

Legal Realism

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Schools of Jurisprudence answer questions like these:

What is law?

Where does it come from?

How can we tell if a law is valid?

When should a law be obeyed and when should it not be obeyed?

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Natural Law

Law is not one thing, but two. There is the perfect law of nature that predates man, which the natural law theorists call “moral law,” and then there is man’s imperfect law. There is a large degree of overlap between the two types of law. Most of the things that are illegal under man’s imperfect law are also illegal under moral law. This is called “The Overlap Theory.”

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Law and Morality

Not drawn to scale.

  • MORAL only

  • Rosa Parks’ defiance of the ban against blacks sitting in the middle of the bus in Montgomery, AL in 1955

  • LEGAL only

  • Slave ownership in 1820s America

BOTHThou shall not kill.

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Natural Law

The law comes from outside man – from nature.

A man-made law is valid if and only if it can be shown to be consistent with moral law.

If a law is moral, it should be obeyed. If it is not, it should not be obeyed.

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Legal Realism

Law can only be discovered by studying how real people are treated by the legal system.

  • The written laws may be predictive of those outcomes, or they may not.


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Legal Realism

Law is a combination of written rules, institutions, procedures, and the biases of human beings. It is the sum total of everything that contributes to legal outcomes.

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Legal Realism

Law comes from human beings, and not just the sovereign, but all human beings in a position to carry out a portion of the legal function within a society, including judges, members of the jury, attorneys, and police officers

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Legal Realism

...doesn’t attempt to answer these two questions!

How can we tell if a law is valid?

When should a law be obeyed and when should it not be obeyed?

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The Five Main Sources of Law

  • Federal and state constitutions

  • Federal and state statutes

  • Common law

  • Equity

  • Administrative law


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The Federal Constitutiondoes 3 basic things

Establishes the federal government

Declares that any powers not expressly given to the federal government by the Constitution fall to the states or the people.

Guarantees the people certain rights.

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The Federal Constitution

What does “the Federal Constitution is the supreme law of the land” mean?

Does the complete text of the U.S. constitution appear in your textbook?

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Statutes

Laws passed by a legislative body

Legislative bodies:

U.S. Congress

California State Legislature

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Common Law

Judge-made law, embodied in the decisions made by appellate courts over the years.

What gives the past decisions of appellate courts legal power?

Answer: The doctrine of stare decisis.

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The Doctrine of Precedent

Means “let the decision stand” in Latin.

It is a policy that similar types of cases should have similar legal outcomes.

If the facts of this case are the same as the facts of a past case ruled upon by an appellate court in our jurisdiction, then the current trial court must reach the same conclusions of law.

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Equity

In medieval England, common law rules were technical and rigid.

Remedies were limited.

Separate “equity” courts developed.

Equity means “fairness” or “justice”.

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Administrative Law

Regulations “promulgated” by federal and state administrative agencies.

Have the full force and effect of law, provided the agency is operating within the scope of the powers granted to them by the legislature.

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Two Other Sources of Law

  • Treaties: Contracts between sovereign nations.

  • Executive Orders: Orders issued by the President or a governor in pursuit of the fulfillment of their duties.


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Criminal law v. Civil law

  • What’s wrong with this sentence?:

    “The court found Sheila guilty of breaching the contract.”

  • Which is this course mostly about?

  • Can the same person stand trial twice for the same act?




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Kuehn v. Pub Zone

  • The jury awarded Karl Kuehn $300,000 in damages.

  • But the trial court judge granted a “judgment notwithstanding the verdict” motion, handing victory to the Pub Zone.

  • Mr. Kuehn appealed.

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Kuehn v. Pub Zone

  • The appeals court in the state of New Jersey overruled the trial court’s decision, and reinstated the jury’s $300,000 verdict.

  • They said the injury was foreseeable because Kerkoulas had reason to believe the Pagans were dangerous.

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Kuehn v. Pub Zone

The Pub Zone had a duty to Kuehn and all its other patrons to call the police when the Pagans pushed past its bouncer wearing colors.

Had they done this, it is likely that Kuehn would not have been beaten up at the Pub Zone.

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McCollum v. CBS, Inc.

How many think the appellate court found for the parents of John McCollum? Why?

How many think the appellate court found for CBS? Why?

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