INTRODUCTION TO AMERICAN LAW (LAW5HAL). LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law Professor Thomas Lundmark 10-12, 15-16 February 2010. Wednesday, 10 February 2010 morning session: historical background
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LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law
Professor Thomas Lundmark
10-12, 15-16 February 2010
morning session: historical background
reading assignment: Farnsworth pp. 1-13, Lundmark pp. 5-15, 53-55, 74-77
afternoon session: legal training
reading assignment: Farnsworth pp. 15-35
Thursday, 11 February 2010
morning session: legal profession
reading assignment: Farnsworth pp. 23-35
afternoon session: judicial systems
reading assignment: Farnsworth pp. 37-45, Lundmark pp. 74-81, 85-86, 90-91
Friday, 12 February 2010
morning session: legislation
reading assignment: Farnsworth pp. 61-81, Lundmark pp. 93-101, 105-106
afternoon session: case law
reading assignment: Farnsworth pp. 47-60
Monday, 15 February 2010
morning session: civil procedure
reading assignment: Farnsworth pp. 99-110, 115-117
afternoon session: constitutional rights
reading assignment: Farnsworth pp. 147-155, Lundmark pp. 109-120
Tuesday, 16 February 2010
morning session: fundamental rights reading assignment: Lundmark pp. 160-168
afternoon session: equal protection
readingassignment: Lundmark pp. 169-175, 179, 184-200
history of statutory law-making
history of the forms of action
characteristics of statutes
statutory construction (also 'interpretation')
history of statutory law-making
Willem king gret Gosfregð scirgerefan and ealle þa burhwaru binnan Lundene freondlice. And ic beode eow þat ge on Lanfrances lande archbisceopes þe gebyrað into Hergan ne mman ne heort ne hindan ne hran, ne ge nates hwon ðærinne æig ðing huntian butan ðam he rylf bebyt oððe leofe togyfð.
Translation: King William extends friendly greeting to Geoffrey the sheriff and all the citizens of London. And I order you that you not take stags or hinds or other deer from the land of Archbishop Lanfranc at the manor of Harrow, and that you not hunt anything there without the archbishop's order or licence.
parliament concentrated on financial matters, including the organization and defense of the state
legislation was problem-oriented
judges were seen as discovering, declaring, and applying the law, not making it
In the seventeenth-century struggle between Parliament and the Crown, the common lawyers and judges threw their weight onto the side of Parliament and this alliance “made a clear issue between tradition, common law and the medieval view [that the king was under Godand the law] on one hand and, on the other, the newer idea of statecraft, absolutism and a supreme royal equity” (Plucknett, p. 283).
lawyer, doctorate in civil law, professor of common law, then judge
Book I "Rights of Persons," including "absolute rights of individuals"
Book II "Rights of Things"
Book III covers "Private Wrongs"
Book IV "Public Wrongs"
essentially an encyclopedia and commentary on the common law, ie, case law
history of the forms of action
the common law developed within the framework of form pleadings or 'actions'
By the end of Henry II's reign there were 75 (at other times 40) stereotyped forms of writ, each with its own title indicating its function
the clerks of the royal Chancery would issue them as a matter of course to anyone who could pay for them (cf. court fees)
available to all Englishmen, whether of Norman, Saxon, or Scandinavian stock, and wherever they happened to live
activities not covered by an action were outside the purview of the (common) law
There were three groups of actions:
real: recovery of the thing
personal: recovery of damages
mixed: recovery of both the thing and damages
example: action in debt
had two elements:
defendant owes a fixed sum of money (such as an unpaid loan, rent, or purchase price, not compensation for ordinary breach of contract)
defendant received a quid pro quo or, later, "consideration"
later replaced by assumpsit
Notice how the 'formal' forms of action protected 'substantive' rights
For example, debt stated positively: One who (in a commercial context) promises to pay a fixed sum of money shall pay that sum.
The forms of actions imposed limits on the jurisdiction of the common law courts
but, because they were stated so abstractly, the courts had considerable room for interpretation
Cf. abstract codifications
the common law forms of action have, for the most part, been replaced by modern pleading that is intended only to put the defendant on notice of the basic substance of the claim (see lecture on civil procedure)
a huge number of statutes have been enacted in their place
the statutes extend the law far beyond the original restraints of the common law writs
three groups of actions, according to remedy:
1. Parties capable of contracting;
2. Their consent;
3. A lawful object; and,
4. A sufficient cause or consideration.
obligation arising from contract, the measure of damages … is the amount which will compensate the party aggrieved for all the detriment proximately
caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.
(1) a fiduciary relationship or other circumstances appropriate to the remedy; and
(2) a balance due that can only be established by an accounting. (Witkin, California Procedure, Pleading, § 820)
At law (incl. partners)
At equity (incl. partners)
mortgage foreclose (more than 200 cases)
petition for injunction to partition real estate (142 cases)
petitions to sell real estate to pay debts (75 cases)
divorce cases (145)
dower petitions (44)
history of statutory law-making
characteristics of statutes
statutory construction (also 'interpretation')
divide governmental power to avoid tyranny, caprice, oppression
- adoption by unmarried persons/pair
- civil unions or same-sex marriages
- general welfare
traditionally local concerns
- law enforcement including criminal law
- private law including family law
Art. VI, § 3: New states may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.
March 2, 1836 Republic of Texas declared independence from Mexico
December 29, 1845 territory of Republic of Texas admitted as state
Art. IV, § 4: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Amend. XVII (1913): The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years ….
must accord "Full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other State"
must extradite persons charged with a crime in another state
must accord citizens of other states the same "Privileges and Immunities" that automatically inure to its own citizens
enter into treaties
grant titles of nobility
tax imports and exports (w/o consent)
keep troops in time of peace
engage in war (w/o consent) unless invaded
(McCain concession speech)
Dec. 20, 1860 Lower South secedes: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas
Mar. 4, 1861 Lincoln’s inauguration
April 12, 1861 firing on Fort Sumter
Upper South secedes: Virginia, Arkansas, North Carolina, Tennessee
extend franchise (right to vote)
- former slaves
privileges and immunities →
due process →
equal protection →
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
drinking age for alcohol
carrying of guns
1981 Jim Brady shot in Reagan assassination attempt
federal Brady Handgun Violence Prevention Act
chief law enforcement officer of each local jurisdiction must conduct background checks on applicants for gun permits
officials in Montana and Arizona challenged the law
Congress cannot … conscript … the States' officers directly
Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers … to administer or enforce a federal regulatory program
federal government created background- check database
vast majority of local and state law enforcement officials voluntarily conduct background checks
victory for the NRA?
El Paso 2.4
San Jose 3.1
San Diego 3.8
New York 7.3
San Francisco 7.3
Oklahoma City 8.5
- minimum wage
- maximum hours
- age discrimination
history of statutory law-making in common law jurisdictions
characteristics of statutes statutory construction in common law jurisdictions
inheritance of personal property
regulatory competition law
and modern statutes are typically even more detailed than older statutes
legislation on breastfeeding in California:
breastfeeding allowed in public (law does not apply to a private home of another). California Civil Code §43.3
lactation services or information must be made available by all hospitals/maternity care facilities. California Health & Safety Code § 123360 and § 123365.
breastfeeding mothers excused from jury duty. California Code of Civil Procedure § 210.5
employers must make accommodations for employed breastfeeding mothers. California Labor Code §§1030, 1031, 1032, 1033
UK: Law of Property (Miscellaneous Provisions) Act 1989 (c. 34)
sec. 3. The rule of law known as the rule in Bain v. Fothergill is abolished in relation to contracts made after this section comes into force.
California Civil Code § 1714
(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.
(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal. 3d 144 and to reinstate the prior judicial interpretation of this section as itrelates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.
(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.
history of statutory law-making in common law jurisdictions
characteristics of statutes in common law jurisdictions
called 'parliamentary supremacy', 'legislative sovereignty' etc.
If there is a conflict between the common law and statutory law, statutory law prevails
possible exception: state and federal constitutions
Marbury v. Madison (1803)
It is emphatically the province and duty of the judicial department to say what the law is
[A] legislative act contrary to the constitution is not law ….
literal (textual, plain-meaning)
historical (original intent, intentionalism)
functional (purposive, teleological, policy-oriented)
"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion." Caminetti v. U.S., 242 U.S. 470 (1917)
"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'
"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332 (1929).
"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996)
The court does not ask what the legislation might be intended to say, just what it actually says.
What is the literal and ordinary meaning of the words used?
R. v. Human Fertilisation and Embryology Authority ex parte Blood [CA 1997]
married couple decided to have a baby
husband contracted meningitis and fell into coma
sperm extracted and frozen
husband died without regaining consciousness
statute required a man's written consent for the use of his sperm in the UK
United States v. Drury, 11th Circuit Court of Appeals
Drury accused of soliciting the murder of his wife
18 USC § 1958(a): "Whoever...uses the mail or any facility in interstate commerce...with the intent that a murder be committed...".
Drury used a telephone capable of calling out of state, but did not actually call anyone out of state
Amended to read “facility of” rather than “in”
Taking into consideration all circumstances at the time of the creation of the statute, the court determines what the legislators intended with their actual words.
What did the original legislators intend with the words that they used?
use of traveaux préparatoires/legislative history. Pepper v Hart [HOL 1993]
Antonin Scalia (born 1936)
'In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption'
Charles Evans Hughes (1862-1948)
'We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution'
federalism vs. failure of the states
respect for democratic institutions vs. inherent danger of majoritarian rule
original intent vs. changing world
respect for separation of powers vs. recognition of courts' role in protecting rights
Train v. Colorado PIRG (US 1976)
Federal Water Pollution Control Act (FWPCA) directs the EPA Administrator to regulate the discharge of "pollutants" into navigable waters
"pollutant" includes "radioactive materials"
The Nuclear Regulatory Commission pursuant to the Atomic Energy Act regulates discharge by its licensees of radioactive materials
Must the EPA also regulate radioactive discharges from licensees?
legislative history reflects a congressional intention not to alter the NRC's control
10th Circuit: text prevails
USSCt: congressional purpose prevails
“golden rule” aka “avoiding absurdity”
Ordinary words should be given their ordinary meaning and technical words should be given their technical meaning unless it would lead to an absurd result.
Reason: we should not assume Parliament/Congress/legislature intended to do something absurd
(Can also be understood as a caveat to the plain-meaning rule)
Kirby v. United States (US 1868)
federal statute: "That if any person shall knowingly and willfully obstruct or retard the passage of the mail or of any driver or carrier or of any horse or carriage carrying the same, he shall, upon conviction, for every such offense pay a fine not exceeding one hundred dollars."
Kirby, a county sheriff, arrested Farris on a bench warrant after Farris had been indicted for murder
Farris was arrested while carrying the mail
holding: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter."
Green v. Bock Laundry Machine (US 1989)
Rule 609(a)(1) of the Federal Rules of Evidence: evidence that a witness has been convicted of a felony "shall" be admitted for the purpose of attacking the witness's credibility "only if" the court determines that the probativeness of the evidence outweighs its prejudice "to the defendant“
Does this also apply to civil plaintiffs?
Held: It is unfathomable why a civil plaintiff -- but not a civil defendant -- should be subjected to this risk. Thus, we agree with the Seventh Circuit that, as far as civil trials are concerned, Rule 609(a)(1) "can't mean what it says.“
example of golden rule
Traceable to the “mischief rule” in Heydon's Case (1584): interpretation should aim to remedy the mischief (defect, problem, etc.) that the statute itself aimed to remedy.
The court tries to find the purpose of the legislation, rather than just looking at the words used, or even what the individual legislators thought
Asks the question: What is the general underlying (public) purpose of the statute?
aka teleological, policy-oriented, legislative purpose, etc.
Gorris v. Scott (Court of Exchequer 1874)
(Animals) Act of 1869
required carriers by
water to provide separate
pens for transported animals
The plaintiff’s unpenned
sheep were washed overboard by a storm
HELD: statute was aimed at preventing the spread of contagious diseases among animals; the harm suffered was not within the risk the danger of which motivated the passage of the statute
A Washington statute has a procedure for declaring dogs “dangerous” or “potentially dangerous”. Further:
“The owner of any dog that aggressively attacks and causes severe injury or death of any human, whether or not the dog has previously been declared potentially dangerous or dangerous, shall, upon conviction, ….” Rev. Code Wash. §16.08.100(3)
State v. Bash (Wash. 1996)
Can an owner be convicted if her dog has not been declared “dangerous” or “potentially dangerous”?
No legislative history available
Trial court: guilty
Supreme Ct of Washington: “legislative intent” is to punish owners who’ve been placed on notice
Church of the Holy Trinity v. United States (US 1892)
It constituted a crime to assist in migration “any alien…under contract or agreement…to perform labor or service or any kind in the United States”
Church of the Holy Trinity “called” a pastor from England
USSC: The “evil” at which the statute was directed was importation of “an ignorant and servile class of foreign laborers” who would work “at a low rate of wages,” thus “break[ing] down the labor market”
traditional literal rule (abandoned)
ejusdem generis (treating items 'of the same kind' together)
noscitur a sociis ('it is known from its associates')
expressio unius est exclusio alterius ('the expression of one thing is the exclusion of another')
A statute in derogation of the common law is to be strictly construed.
California Civil Code § 4. “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.” 
'it is known from its associates'
words in the same context are to be construed by reference to other words in that context
they are thus a family
treat items 'of the same kind' together
When a list of specific items belonging to the same class is followed by general words, the general words are to be taken as referring only to those things of the same class as specifically mentioned
E.g., ‘cats, dogs, and other animals’ does not include wild animals.
'The expression of one thing is the exclusion of another'
When a list of specific items is not followed by general words, it should be taken as exhaustive.
Anything that is not mentioned will not be covered by the act.
Health and Safety Code §11610
“A vehicle used to unlawfully transport any narcotic, or in which any narcotic is unlawfully kept, deposited or concealed, or in which any narcotic is unlawfully possessed by an occupant thereof, shall be forfeited to the State.”
§ 11620: The claimant of any interest in a seized vehicle has the right to prove his lien or sales contract to be bona fide and that his title ‘was created after a reasonable investigation of the moral responsibility, character, and reputation of the purchaser, and without any knowledge that the vehicle was being, or was to was to be, used for the purpose charged.’
§ 11622: ‘In the event of such proof,’ the vehicle must be returned to the lien claimant or vendor
The appellant was engaged in the wholesale fruit and vegetable business in Los Angeles
Appellant's truck dispatcher, Mike Donata, directed one of appellant's other employees, Irving Schiller, to take one of the company's Ford trucks and made a delivery of cucumbers
Holding: “The use made by Schiller of the truck of his employer is within the express terms of the legislation enacted for the purpose of curbing the traffic in narcotics and, applying the doctrine of expressio unius est exclusio alterius, is not one which exempts the owner from the drastic statutory penalty.“