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Unformatted text preview: BUL 4310 – Notes for January 13th Lectures
© Robert W. Emerson, 2009
These notes are derived directly from the lectures and texts of Prof. Emerson, with editing
from TAs and Prof. Emerson. While most comes directly from statements in class, some
elaboration may come from the texts.
Please feel free to print these notes and to integrate what you think may be helpful into
your own test preparations.
As has been repeatedly stated in class, your best approach to learning is to watch the
classes themselves and take your own notes. But these notes can help you: (1) see how
good your own note-taking is, and (2) further develop your own note-taking. THIS is NOT
a substitute for watching class and taking notes. Studies are clear: simply using or
otherwise depending upon someone else’s notes is not a good way to learn. Instead, these
notes can be a supplemental tool for assessing what you are already doing to learn the
If you have any questions or suggestions or corrections, please contact Prof. Emerson at
firstname.lastname@example.org 1/13/09 – First Hour
Purposes of Law
Professor Emerson talked about the end of the drop/add period.
To understand the law more clearly, you can separate and classify the law into various different
categories; each set of classifications is called a dyad. Dyad basically means a pair – a set of
• Law studies make the differences between different types of law too distinct. There
really isn’t that clear cut of differences between the different types of law.
Almost everyone is a philosopher. (Professor Emerson showed a video of the Three Stooges
and commented that even they are philosophers.)
When humanity reaches a certain level of cognition it develops a philosophy on life. Law is
dedicated to the proposition of furthering or bettering life’s situation.
What are some purposes of law? All societies have laws, but the purposes of the laws vary from
society to society and how they emphasize the law. (pg. 40) o Justice/Fairness: The community must agree with the law and the fairness of
law. A lack of this agreement by the community will cause the laws to be unfair
and unjust. A community creates the laws, so those laws should be fair and just
for that community. (Ex. Prohibition failed because the majority of the
population didn’t agree with it.)
Law only survives when at least 95-97 percent of people agree and follow it.
Most Americans pay their taxes in a reasonably fair manner, but Italians don’t pay
their taxes unless they are made to.
Shakespeare frequently wrote of law and lawyers. “Let’s kill all the lawyers.”
Some scholars believe Shakespeare actually meant that instead of literally calling
on people to kill all lawyers Shakespeare meant that lawyers are the bastions who
protect the state from anarchy. o Order/Stability: Order is fundamental to the purpose of law, and law must ensure
stability. These tend to be the same, the thing that changes is the emphasis.
Whether you emphasize order/stability or equality its up to its host. Aristotle said,
“Law is order, and good law is good order.” o Influencing conduct: Laws can be used to change conduct. The change in
conduct can be due to the punishment established for breaking of the laws.
Punishment differs between countries (for example, caning occurs in many
countries outside the US). o Honoring expectations and contracts: If people make a deal, that deal should be
upheld. There should be no “weaseling of contracts.” o Assisting compromises: Laws should be used to resolve disputes. The courts and
legislative systems are used as forums to help resolve these disputes. o Promoting equality: An idea that will make all people equal; actually, this is a
relatively new idea for many places. Differences in law depend on where you are and what is emphasized. (pg. 42) Singapore's legal
system; execution and flaying - something that wouldn’t stand in the United States, is legal in
Singapore. (Professor Emerson gave two examples: One of an Australian man who was put to
death for traveling with illegal drugs through Singapore, The other of American, Michael Fay,
who was caned for vandalizing cars) The U.S. Constitution bans this type of cruel and unusual
Justice and Fairness: very linked.
Classifications of Law
Public vs. Private 2 Public Law: Affects the government and its role in society. Public law is the relationship
between people and the government. The government is usually one of the parties involved in the
case. Examples: Criminal Law (party of the state prosecuting the individual); tax law;
Private Law: Most of what we study will be private law. It tends to be the law between parties,
neither of whom is acting as a governing force or agency. This includes laws between
businesses. Once you get away from the government being a prime player in the legal matter, it
becomes private. The rules of litigation are put forth by a governing agency, but the conflict
occurs between private parties. The forum (courts, legislatures) is public, but the parties are
private. Examples: contract law, wills, estates, torts, and family law.
Statutory vs. Case Law
Statutory Law: Civil law countries follow a statutory system. Their codes are a collection of
statutes, which are legislative enactments or ordinances.
Case Law: Common law is almost entirely Case Law. Our system at its base is court created
law, while having other ways that law can be developed. The common law is in effect a large
body of case law. A lot of the common law can be overwritten by statutes, but only if the
legislature really wants to.
In the United States, we have system that is a combination of the two. (Inherited from England)
The legislature passes laws that are obscure and let the courts interpret it. Or the courts pass laws
that are general and let the individual courts interpret it. In this course, we’re going to study Case
Most of the world is coming together with similar ideas of law. Due to the American and
English influence in nations throughout the world.
Florida Statutes (only statutes) vs. Florida Statutes Annotated (statutes with court opinions
Criminal vs. Civil
Remember: There is a difference between civil law and Civil law. Civil law (with a capital C)
refers to the ancient Roman system of law that is still used in some parts of the world today; civil
law (with a lowercase c) refers to anything other than criminal law used in a country.
Criminal Law: Encompasses wrongs prohibited by society. This law involves punishments like
going to jail. Example: A jury finds a defendant guilty or a person is charged
Civil Law: Basically, everything else that’s not criminal law. Concerns alleged wrongs between
individuals or businesses. The distinction is that this refers to everything other than criminal law.
This involves lawsuits, contract law and tort law. Examples: X files suit against Y or Z is found
Procedural vs. Substantive
Procedural Law: refers to rules and means of enforcing substantive law. Trial lawyers are often
masters of procedure and are hired for these skills. Taking the right steps.
Substantive Law: refers to the legal aspect of law; it also defines the legal rights and obligations
to specific subjects. Substantive law refers to relations, rights, and obligations. The actual
substance of the law or argument. Having the right push.
There is an interaction between procedure and substance that is critical. If you don’t follow
procedure, you lose out on a right to assert your substance. Substance is more important, but they
both flounder without the other. 3 There can be a conflict between them that is referred to as “efficiency versus fairness.” For
instance, it’s not always fair that just because you are too late on the statute of limitations that
you cannot file your case, but that is the way the procedural law is.
Even when you're going after the devil, there are ways of doing things. There are limits and
procedures. Even if you're going against someone who commits something aghast, there the
procedure must stand.
Professor Emerson illustrated this point by talking about how he used to run track in high school
(Story Number 10). He was fast but did not have the form (because he runs like a duck). His
friend had the form but not the speed. So; therefore, neither one of them was very good, but if
they could’ve combined their talents, they may have been a lot better.
1/13/09 – Second Hour
- Schools of thought – Jurisprudence
“We all have philosophies, whether we think of it or not.”
Jurisprudence is the science or philosophy of law. It is based on philosophy, economics,
psychology and religion.
Robert Bolt was a playwright who believed that at the core of protections are procedural law, so
important they are tied into the substance. (Supplemental Info 10)
Sir Thomas Moore was picked to be Arch Bishop of Canterbury by King Henry the 8th, Moore
said “I know what’s legal and what’s right, and I will do what’s legal.” Sources of Law – there is a hierarchy:
The United Nations’ International Court of Justice
U.S. Statutes, Executive Orders, Agency Regulations
Custom (pg. 44) Historical: Law as Custom: most of the American legal system is certainly partial to
the historical system, because common law looks to precedent. You need to understand history
and culture. Based mostly on Precedent.
Oliver Wendell Holmes Jr. (Supreme Court Justice): To understand law, you must
understand history. Law depends upon what has come before. The life of the law is not logic,
but experience. You start with what people have been through and what they feel is
important. 4 George Bernard Shaw – substantially it doesn’t matter that in America we drive on the right
side of the road and in other countries people drive on the left side, but what does matter is
that the law exists. (A country once tried to let people with even number license plates drive
on one side and odd number plates on the other, needless to say this didn’t work!) The law is never static. The most important thing to know is where law is going.
Utilitarianism: The greatest good for the greatest number. This is the school of thought that
takes into account the impact on everybody, not just the decision makers. Economics depends
on utilitarianism precepts.
Jeremy Bentham wanted the satisfaction of being on the hospital board post mortem (that
was his condition to which he would donate his money), and they did so to receive the money
he was willing to donate.
Law and Economics (Example 13: Emerson dividing up 1000 dollars between himself and a
student) Possibly the most influential movement of law. Has had influence in antitrust law,
administrative law, tax law, etc. Says that our law is connected in a manner that is dealt with in
business, and no law should be put forth that doesn’t make sense in an economic sense. There is
a lot of calculating of cost vs. benefit in law. The law is dealt with respect to Economic
Efficiency and Market Analysis. Everything can be defined in economical terms – even the law.
Members include Richard Posner and Robert Bork. This is also known as the Chicago School
due to the great number of professors at the University of Chicago who commented upon the
subject. Answers the basic question can everything be reduced to markets and market forces?
Studies show that as people become more understanding of market forces they are more likely to
distribute wealth evenly. Positivism: What the state has put forth. Positivists are troubled by people going beyond the
state law. Sort of a "Just the facts, ma'am" mindset. They don’t think the law is perfect, but rather
they are troubled by the ability of people to make the law uncertain, and they don’t like seeing
that incorporated into the law. Looking for sources past what has been put forth is risky and leads
to idiosyncrasy. They think the law is simply whatever the legally constituted power has put into
place. Opponents of Positivism are those of the Natural Law school. Opponents believe that
positivism doesn’t take into account morality.
Natural Law: The law arises from certain values or judgments that do not change. There is
always something beyond positive law. Natural Law is based on values and judgments that do
not change. Cicero, St. Thomas Aquinas, Immanuel Kant. The natural law school doesn’t
require a supreme being, but most of its theorists assume one. It’s the notion that there is a law
above man made law that is in effect. There are certain things that are fundamental and absolute,
that this law would supersede "positive" law.
Immanuel Kant spoke about duty: deontological: 5 "The correctness of an action lies within itself, not in the consequences of the action". He
believes that everyone should behave as they would want the law to act. This is also known as
the categorical imperative.
o Opposed the teleological approach: Consequences approach. Looking at the end result.
Oriented towards the end result. Look at the consequences, not the duties; the ends
justifying the means.
o The notion behind the Nuremburg trials was partially natural-law based. There were
positive laws (treaty of Versailles etc), but it was mainly natural law. "We don’t care
what your supposed positive law is. There are some things that you cannot make positive
law do." You can say you're just following orders, but at a certain point it just gets
ridiculous and you end up breaking a higher law.
William Lloyd Garrison was a famous naturalist who believed that the Constitution is a pact
with Satan because it contains the ideals of and condones slavery. He published the Liberator.
Laws in the holocaust were in violation of natural law. These laws were eventually trumped,
which proves that positive law doesn’t always overpower natural law. 6 ...
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This note was uploaded on 02/14/2011 for the course BUL 4310 taught by Professor Carolan during the Spring '08 term at University of Florida.
- Spring '08