their positions and the strength’s of the opposing sides They create an environment in which the parties are more likely to think of creative solutions to their problems that can benefit both sides o Summary Jury Trial: a jury is selected and they view a presentation of evidence. The weaker side sees that they are vulnerable and often times settles shortly after o Minitrial: corporate executives view an abbreviated presentation of evidence and begin settlement negotiations Sources of Law: o Common law- decisions made by judges—flexible and adaptable Judges look at past court cases to find precedent— stare decisis The attorneys for both parties look for earlier cases involving similar fact patterns in an effort to determine whether applicable principles of law have been established Sometimes they don’t try this, they completely overturn or modify Flagiello v. Pennsylvania Hospital (1965) (below) Mandatory precedent: supposed to follow it because higher levels in the appellate chain (in the same state) made the decisions Sometimes judges follow precedents from other sources like UK or different states (persuasive authority) Common law was originated by the judicial branch through decisions in cases decided by the courts It diffuses rules found in fact patterns and decisions of prior cases It has a narrow scope- it is limited to actual cases The effects of social and political forces are indirect because judges somewhat are insulated from political pressures Role of the judge: Compares the case to previous cases Decide if precedents are still applicable o Statutory law- decisions made by legislative branch through formal lawmaking process Form is official codified text It has a broad scope- subject only to constitutional limitations
It feels direct effect of social and political forces through the political process Can represent the people Cannot take away our rights Requirements: Cannot only affect a portion of the citizens Requires that the subject of every act be set forth in it’s title Prohibits a statute from embracing more than one subject —prevents omnibus bills Cannot pass vague laws- must be “reasonably definite and certain” Criminal statutes are overturned often for being too vague Statutory interpretation: their objective is not to interpret a statute in the way the judges think it should have been written but instead in the way the judges think that legislature would have wanted it applied, courts have to fill in the blanks, Search for legislative intent First refer to dictionary for all language, second examine context, third examine the history, fourth discern the meaning of the legislative language, fifth consider precedent the purpose rule- figure out what problem the legislature was trying to solve plain meaning rule- wording is clear and cannot be seen any other way, rare look at legislative history focus on the text, look at the language that the
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