The Nature of the Law

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1 The Nature of the Law Chapter 1 1 The Types of Law Constitutions Statutes Common Law and Statutory Interpretation Equity Administrative regulations Administrative decisions Treaties Ordinances Executive orders 2 Constitutions- Exist at both state and federal level. Set up governmental structure. Prevent governmental units from taking certain actions or passing certain laws. Federal Constitution is supreme; State constitutions may grant more protections to its citizens than the US Constitution, but not less. State voter initiatives may amend state constitutions Prop. 209: (a) The state [California] shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (1996) 3 1

2 Statutes/Codes Codified laws created by Congress or state legislatures. US Code: Federal laws created by Congress e.g., U.S.C. TITLE 12 CHAPTER 21 BANKS AND BANKING - FINANCIAL RECORDKEEPING Statutes: State laws created by state legislatues Also known as Codes California has 29 codes e.g., Business and Professions Code, Civil Code, Code of Civil Procedure, Penal Code, Vehicle Code, Revenue and Taxation Code Uniform acts are model statutes drafted by private bodies of lawyers and/or scholars. e.g., Uniform Commercial Code (UCC) Article 2 of UCC adopted by all states Regulates contracts for the sale of goods Some states have adopted additional articles of UCC State voter initiatives are sources of statutes Proposition 13 cut rates of and slowed growth of property taxes in CA. (1978) Also amended CA s Unfair Competition Law, November Common Law vs. Statutory Interpretation Common Law: Judge-made or case law. Common law: A body of law that is based on custom and general principles and embodied in case law and that serves as precedent or is applied to situations not covered by statute Example: the common law of torts b: The body of law originally developed in England that is the basis of U.S. federal law and of state law in all states except Louisiana CA is hybrid: California codified common law in 19 th century to replace Spanish civil code system. In theory, common law exists only at the state level. Covers mainly tort, contract, criminal*, and agency law, often evolved over centuries. Much of our tort, contract, and substantive criminal law originated from English common law courts But is expanded, contracted, modified daily. Compare: US Constitution But there is federal judge-made law e.g., Roe v. Wade; Miranda v. Arizona No explicit constitutional or US Code right to privacy or police notification of rights Statutory Interpretation Judges also have wide discretion to interpret (and overturn) codified laws when cases involving those laws come before their courts: US Code, state statutes, even ordinances Unconstitutional laws, as deemed by courts, are overturned Note similarity between common law and statutory interpretation 5 Equity Applied to situations where common law rules produce unfair results. Equity examples: Specific performance of contracts and/or injunctions where money damages would be inadequate Equity courts were originally separate from common law courts. Plaintiffs in old common law courts had to choose one remedy or the other. Remedy: the means to enforce a right or to prevent or obtain redress for a wrong: the relief (as damages, restitution, specific performance, or an injunction) that may be given or ordered by a court or other tribunal for a wrong Traditional separation of law and equity now virtually gone (single court now handles both). 6 2

3 Administrative Regulations Administrative agencies exist at both state and federal level. Federal Executive Agencies FDA, NRA, OSHA, IRS, OFAC Independent Agencies Federal Reserve, FTC, EEOC, EPA, SEC Legislatures delegate law-making power to administrative agencies. Calif 25 major regulatory agencies: Department of Alcoholic Beverage Control, Cal-OSHA, Department of Corporations Calif: Several minor agencies: Air Resources Board, Regional Water Quality Control Board, Coastal Commission, Department of Conservation Some agencies use internal court-like procedures to hear cases and make binding decisions. 7 Treaties Made by the President and other heads of state. Must be ratified by two thirds of Senate (67 votes). Defeat inconsistent state law. e.g., (NAFTA) North American Free Trade Act The North American Free Trade Agreement (NAFTA) is a trilateral trade agreement between the US, Canada, and Mexico. The purpose of NAFTA is to eliminate trade barriers, facilitate cross-border movement of goods and services, increase investment opportunities, promote fair competition, and enforce intellectual property rights in each party's territory. On January 1, 1994, NAFTA superseded the United States - Canada Free Trade Agreement (CFTA). NAFTA added Mexico to the trade agreement and strengthened the CFTA's provisions. See also, Executive agreements 8 Ordinances Enactments of local (county and city) governments. e.g., Each county in California has an Office of Weights and Measures SMMC Section : RESTRICTIONS ON LIQUIDATION AND GOING OUT OF BUSINESS SALES. No person or persons, company, corporation, or other entity shall hereafter publish or conduct any sale described above without first obtaining a permit therefor from the Director of Finance. (Added by Ord. No. 1851CCS 23 (part), adopted 5/28/96) 9 3

4 Executive Orders Promulgated by the President or state governors. Usually based on delegation from legislature. Executive Order Establishment of the Corporate Fraud Task Force By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to strengthen the efforts of the Department of Justice and Federal, State, and local agencies to investigate and prosecute significant financial crimes, recover the proceeds of such crimes, and ensure just and effective punishment of those who perpetrate financial crimes, it is hereby ordered as follows: Section 1. Establishment. The Attorney General shall immediately establish within the Department of Justice a Corporate Fraud Task Force (Task Force). Without regard to any other provision of this order, the Task Force shall be subject to the authority of the Attorney General under applicable law. 10 Priority Rules According to the principle of federal supremacy, federal law defeats conflicting state laws. Constitutions defeat other all types of law within their domain. US Constitution allsupreme. When treaties and federal statutes conflict, the last enacted generally prevails. Statutes and laws derived from them by delegation defeat inconsistent common law. 11 Classifications of Law Three common classifications cut across the different types of law. Criminal versus civil law Substantive versus procedural law Public versus private law 12 4

5 Criminal and Civil Law Criminal law is the law under which the government prosecutes someone committing a crime. People of California vs. Orenthal James Simpson People of US vs. Martha Stewart Civil law mainly concerns obligations that private parties give to other private parties. John Doe vs. Jane Roe 13 Substantive Law and Procedural Law Substantive law sets the rights and duties of people as they act in society. Crimes, Torts, Contracts, Procedural law controls the behavior of government bodies (and parties) as they establish and enforce rules of substantive law. Civil Procedure and Criminal Procedure, State and Federal Rules of Evidence 14 Public and Private Law Public law concerns the powers of government and the relations between government and private parties. Constitutional law, Criminal Law, Administrative Law Private law sets the legal framework that enables private parties to set the rights and responsibilities they owe to each other. Contract law not involving government parties, property, agency law, and tort law not involving government parties 15 5

6 The Functions of Law Keeps the peace. Checks government power and promotes personal freedom. Facilitates planning and the realization of reasonable expectations. Promotes economic growth through free competition. Promotes social justice. Protects the environment 16 Legal Reasoning Legal reasoning is basically deductive. Major premise (rule) + minor premise (facts) = result Cal Veh. Code: 55 MPH speed limit You are caught driving 65 If minor premise is proven, you are convicted if it fits major premise. If not proven, you are acquitted 17 Case Law Reasoning Prior cases or precedents are relied on in cases governed by the common law or by statutory law. Only appellate opinions by courts with appellate jurisdiction are binding (see next chapter for details) on future cases US Supreme Court decisions binding on all courts Non-binding authority may still be persuasive to some judges Under the doctrine of stare decisis, like cases should be decided alike. However, courts occasionally overturn precedents they strongly disagree with. Brown v. Board of Education (1954) overturned separate but equal doctrine of Plessy v. Ferguson (1892) See also, Lawrence v. Texas (SCOTUS overturned Bowers v. Hardwick, 1986) striking down state anti-sodomy laws Decisions can also be overturned by Constitutional Amendment Dred Scott vs. Sandford (1857) overturned by 13 th (1865) and 14 th (1868) Amendments to the Constitution 18 6

7 -Statutory Interpretation Statutory language is often ambiguous. e.g., What is a building for purposes of California burglary statute Cal. Penal Code 459? Courts use various techniques of statutory interpretation. Plain Meaning Legislative History General Public Purpose Prior Interpretations Maxims Judge s Philosophy 19 Plain Meaning The court should apply the statute according to the plain, accepted meaning of its words. But statute can be ambiguous, silent on new issue, or judge wants to expand (or contract) the law in this area (see Judge s Philosophy, infra) 20 Legislative History A statute s legislative history includes a number of sources. Examples include minutes of legislative committee hearings, legislative debates, and conference committee reports. e.g., United Steelworkers v. Weber, p. 23 e.g., Securities Exchange Act of 1934 For the reasons hereinafter enumerated, transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets are affected with a national public interest which makes it necessary to provide for regulation and control of such transactions and of practices and matters related thereto

8 General Public Purpose General public purpose (or public policy) is different from the purpose underlying the statute itself. e.g., Denying tax-exempt status to a private school due to general public policy against racial discrimination. e.g., Public policy against illegal monopoly behavior (i.e., antitrust) may lead to forfeiture of other business rights such as patents. 22 Prior Interpretations Courts follow prior cases (and administrative decisions) rather than the statute s plain meaning. Lower courts must follow; equal courts usually follow precedent as a tradition As discussed supra, must be published appellate opinions Promotes stability and certainty. Like stare decisis Generally a common law definition, but in practice, the tradition applies to prior interpretations of statutes also. 23 Maxims General rules of thumb employed in statutory interpretation. e.g., ejusdem generis In statutes, general words following words of specific, limited meaning should be limited to things of the same class as those specifically stated e.g, Gas-powered vehicle smog test statute other vehicles mentioned in a sub-section of the statute would likely exclude electric cars (and helicopters) since it is within a statute relating to gasoline vehicles. A public law or right cannot be altered by the agreements of private persons. Whatsoever was at the common law, and is not ousted or taken away by any statute remaineth still. 24 8

9 Judges s Philosophy Although a judge s job is to interpret, not make the law, it is a myth to believe judges always keep their personal philosophy out of their decision making Strict Constructionist & Plain Meaning vs. Judicial Activism Is the judge following the law or making it up? Does the judge s reasoning flow naturally from the law, or is it agenda- or outcome-based? Even if you agree with the outcome, does the end justify the means? What happens next time when you don t agree with the decision? 25 Limits on the Power of Courts Many factors discourage courts from adopting a freewheeling approach. Respect for precedent Respect for Constitution, will of legislature Academic, professional review Lower courts subject to reversal by higher courts Some judges (not federal) are elected But some of our most significant case law has come from activist Supreme Courts using result-oriented reasoning. Roe vs. Wade Miranda vs. Arizona 26 Procedural Limits on the Power of Courts Justiciability: To rule, a court must be presented with actual case or controversy between real parties with real disputes. Courts generally do not issue advisory opinions. No hypothetical or abstract questions of law. Declaratory judgments are provided for by both federal and state law. Declaratory judgment. n. a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. While this borders on the prohibited "advisory opinion," it is allowed to nip controversies in the bud. Examples: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or a corporation may ask a court to decide whether a new tax is truly applicable to that business before it pays it. Declaratory judgments permit parties to a controversy to determine rights, duties, obligations or status. Limited to cases of actual controversy, same rules as regular case Ripeness: Case must be mature for hearing: e.g., Woman can t sue for abortion rights until pregnant. Mootness: No longer real dispute between parties. e.g., White student suing to challenge affirmative action graduates before he gets to court; case was held to be moot. Standing: Plaintiff must have some direct, tangible, and substantial stake in the outcome. e.g., Man can t sue for abortion rights, or on behalf of a child he does not have custody 27 of; whales do not have standing to sue under endangered species acts. 9

HUMAN RIGHTS AND THE AMERICAN CONSTITUTION

HUMAN RIGHTS AND THE AMERICAN CONSTITUTION PROFESSOR DELAINE R. SWENSON CLASS MATERIALS n Pracownik.kul.pl/dswenson/dydaktyka 1 The use of Precedent in the United States Source of law Written sources are