notes for 1-13-11 - BUL 4310 – Notes for January 13th...

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

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 material. If you have any questions or suggestions or corrections, please contact Prof. Emerson at 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 two. • 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 punishment. 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; constitutional 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 Law. 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 included) 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 liable 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: U.S. Constitution International Law The United Nations’ International Court of Justice U.S. Statutes, Executive Orders, Agency Regulations State Constitutions Local laws Case law Private Laws 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 ...
View Full Document

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.

Ask a homework question - tutors are online