The Common Law

1
Sources of Law I What is law (again)?

• Rules that govern behavior, assign rights and
  responsibilities between people, between people
  and government.
• TODAY? sources of law
• Terminology / classifications of law
• Common law how it works
• Statutory law and legislation

2
Classifications of Law
Criminal Law
Civil Law
vs.

• Dangerous behavior outlawed by society
• Government prosecutes accused
• Guilt is determined
• Punishment or fine is imposed

• Regulates rights and duties of parties
• Victim, not govern-ment brings suit
• Guilt not determined
• Compensation is ordered

3
Classifications of Law (contd)
Substantive Law
Procedural Law
vs.

• Defines the rights of the people

• Establishes processes for settling disputes

Public Law
Private Law
vs.

• Sets the duties of government to its citizens

• Regulates duties between individuals

4
Classifications of Law
Common Law Systems
Civil Code Systems
vs.

• Rules emerge from individual decisions
• Judge seeks to resolve dispute not make rules
  governing future behavior

• All legal rules emanate from statutes
• No judge-made law, except

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The Common Law what is it?

• Judge-made law made up of all the decisions made
  by appellate courts.
• Two hundred years ago, almost all law was common
  law most new law is statutory.
• gCommon law predominates in tort, contract, and
  agency law it is important in property and
  employment law.
• Based on stare decisis, meaning let the decision
  stand (previous decisions are generally upheld
  in similar cases.)
• Incorporates predictability and flexibility.

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Precedent

• Earlier case deciding same issue
• Controlling precedent is a decision on the
  issue made by a higher court
• Precedent can be
• Followed
• Distinguished, or
• Overruled

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Flexibility StabilityStare decisis makes
common law stable.Common law evolves slowly
when precedent is distinguished and overruled,
rather than followed.
What is the advantage of common law over
statutory law?
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Finding Common Law RulesJudges decide cases and
resolve disputes. They dont always announce
general rules. Others must look at prior cases
and find the rules that apply.Why not establish
general rules for others to follow?
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Find the Rule
What number comes next? 2, 3, 5, . . . ?
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Possible Rules Rule 1Rule 1 Add more each
timeStart with the number 2. Add one more at
each step

• 213
• 325
• 538

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Possible Rules Rule 2

• Rule 2 This is a list of prime numbers in
  order
• 2, 3, 5, 7, 11, 13 . . .

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Possible Rules Rule 3

• Rule 3 At each step, multiply the number you
  have by 2 and substract 1. Start with the number
  2.
• 2 x2(4) -1 3
• 3 x2(6) -1 5
• 5 x2(10)1 9

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Statutory Law
Most new law is statutory, that is, it is
legislation passed by either a state legislature
or the Congress of the United States.
Citizens who vote have some control over
statutory law. We elect the state congressional
representatives and the United States Senators
and Representatives.
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How New Laws are Made
Any member of Congress (Senator or
Representative) can initiate a bill, or proposed
law.
A bill is debated in a committee in the house
where it was introduced.
From the committee, it goes to the full house for
a vote.
If it passes both houses this way, it goes to the
President for his signature.
A Presidents signature turns a bill into law.
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How New Laws Are Made
If vetoed, it goes back to the Congress, where it
must pass both houses by a 2/3 majority.
Once both houses pass the compromise bill, it is
sent to the President to be signed.
If signed, the bill becomes law.
If the second House of Congress made any changes,
or amendments, to the bill, it must go to a
Conference Committee, made up of members of both
houses. Here, they work out compromises between
the two different versions of the bill. The
compromise bill then goes back to both houses for
a final vote.
House ofRepresentatives
Senate
After it passes committee, the bill goes to the
full body of that house for a vote.
If it passes there, it goes to the other house
(House to Senate or Senate to House).
It is assigned to a committee and the process
repeats.
A bill, or proposed law, is introduced in the
House of Representatives or the Senate and then
assigned to a committee for discussion and voting.
Major Senate Committees
Major House Committees
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LEGISLATION EXERCISE Each of you represents a
constituency, AND Each of you is a member of a
political party, either the majority party or the
minority party Your goal is to try to score
points by securing the outcome that best suits
your constituents (according to the rules of the
game)
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Statutory Interpretation
Logrolling ? Is there such a thing as a proper
legislative intent and an improper intent?
Should courts be faithful to improper legislative
intent?
Should statutory interpretation be dynamic? Or
should Congress be forced to pass amendments to
statutes when circumstances change?
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Cycling in Legislatures Three coalitions 1, 2,
3 Three alternative policies A, B, and
C Preference distribution Coalition 1 Coalition
2 Coalition 3 A B C B
C A C A B
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Statutory Interpretation
Sometimes wording is ambiguous, either by
oversight, or intentional -- as a compromise.
Why might ambiguity be intentional?
When a statute has more than one possible
meaning, what factors should guide the court in
its interpretation?

• Dictionary definitions
• Report of legislative committee
• Individual legislators comments about meaning of
  statute

• Intent of enacting Congress? Current Congress?
• Purpose of statute
• Public policies

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Who Decides What Statutes Mean?
Congress and the President enact a law
The law charges an administrative agency with the
task of implementing the statute
Disputes over the meaning of the statute are
resolved by courts
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Administrative Law
Federal agencies such as the Federal Aviation
Agency (FAA) and the Federal Trade Commission
(FTC) and the Bureau of Land Management, all have
the power to make regulations which affect
citizens and businesses.
Agencies were -- and are -- created to fulfill a
need. Someone needs to oversee changing
technologies and practices and their effects on
society. An agency is created when Congress
passes enabling legislation, which describes a
problem and defines the agencys powers.
Agencies often have considerable power in their
areas of specialty, sometimes leading to
controversy. The Administrative Procedure Act
regulates how agencies operate, in an attempt to
reduce the controversy.