Sources and Classifications of Contemporary Law

• The document goes over sources of contemporary law, classifications of law, the criminal process, dispute resolution, state and federal court systems, beginning litigation related processes, variations on pleadings, discovery, rules for a trial, what happens in the plaintiffs and defendants cases, constitutional, statutory, administrative, and common law and agencies

Sources of Contemporary Law

• The United States Constitution establishes Congress, the Presidency, and the Courts, gives states powers not delegated to the federal government, and guarantees basic rights to all citizens
• State constitutions create state-level executive, legislative, and judicial systems
• Statutes are laws passed by federal and state governments, this is called statutory law
• Common law is established by legal Precedent, from earlier cases decided by courts
• Administrative law comes from agencies (set up by statutes)
• Treaties and executive orders also function as law

Classifications of Law

• Criminal law concerns activities society has outlawed, often dangerous
• Government prosecutes the accused in a criminal case
• If found guilty in a criminal case, punishment or a fine is imposed
• Civil law concerns liabilities between private parties and regulates rights and duties; victims, not the government, bring suit
• Guilt isn't determined, however, compensation is ordered

Prosecution and Burden of Proof

• Only the government can prosecute a crime and imprison someone
• Because penalties for criminal convictions are so severe, the government must prove its case beyond a reasonable doubt

Classifying Crime: Felony and Misdemeanor

• A felony is a serious crime where the defendant can be sentenced to one year or more in prison
• A misdemeanor is less serious and often doesn't involve prison
• Often punishable by a year or less in county jail

The Criminal Process

• Arrest warrants are based on information found in a search and are issued by a judge
• When arrested, a suspect is informed of their rights and booked
• Self-incrimination is not allowed, prosecution can't use coercion to force a confession, and suspects can refuse to answer self-incriminating questions
• Indictment occurs if a jury sees probable cause to proceed to trial
• Arraignment is when the indictment is read to the suspect, who then pleads guilty or not guilty
• in plea bargaining, the prosecution may offer reduced charges if the defendant pleads guilty

Dispute Resolution

• Litigation refers to lawsuits, including filing claims in court and potentially going to trial
• Alternative dispute resolution refers to any other formal or informal process for settling disputes without going to trial
• Negotiation involves parties making offers and counter-offers for settlements
• Mediation involves the attempt to reach a voluntary settlement by a neutral mediator
• The mediator in mediation does not render a decision
• Arbitration entails a neutral arbitrator, rendering a binding decision, that may be mandatory if chosen in advance

State Court System

• Trial courts are where almost all cases begin, involving a judge and usually a jury
• These courts determine the facts of a dispute and apply the relevant law
• Trial courts can only hear cases within their jurisdiction
• Appellate courts generally accept the facts from trial courts and review the trial record for legal errors
• The highest appeals court in a state is the state supreme court

Federal Court System

• Federal question cases can be about claims based on the U.S. Constitution, a federal statute, or a federal treaty
• Diversity cases arise when the plaintiff and defendant are citizens of different states and the dispute is greater than $75,000
• United States district courts are the primary trial courts
• The nation is divided into about 94 districts, each with its own district court
• There are specialized trial courts like bankruptcy court and tax court
• United States courts of appeals are the intermediate courts of appeals that divide the nation into circuits
• The United States Supreme Court is the highest appeals court

Steps in Beginning Litigation

• A complaint is a short, plain statement of the allegations and legal claims
• Complaints are "served" or delivered with a summons
• An answer is a reply to the allegations
• A counter-claim is when the accused party initiates a second suit in response to the first
• A reply is a brief reply to the counter-claim

Possible Variations on Pleadings

• If a wrong question has affected many unrelated persons, a suit may become a class-action suit where the plaintiff represents the entire class
• If a defendant fails to answer in time, the plaintiff can ask for a default judgement, an automatic win without trial
• Discovery is the next set of steps after pleadings

Discovery

• Discovery allows both sides to uncover evidence which encourages settlements or reduce surprises during trial
• Interrogatories are written questions that the other party must answer under oath
• Dispositions are interviews under oath of arty or potential witnesses, done by the opposing attorney
• Regarding production, each side may request to see the other side's evidence
• For a case where it is relevant, a party may request the court to order a physical or mental examination of the other party
• E-discovery is the process by which electronic communications are requested by a party to gather information about a case
• Interrogatories and dispositions can cause one side or the other to file a motion in response
• A motion to compel an answer to interrogatories can be made if one side thinks the other has not adequately answered interrogatories
• A motion for a protective order is a request to the court that the other side be made to reduce the number of depositions

Steps Before Trial

• Summary judgement is a ruling by the court when no trial is necessary because there are no essential facts in dispute
• It may be requested by either side
• Final preparation, if proceeding to trial, both sides make a list of witnesses and rehearse questions with their own witnesses
• Telling the witnesses how to answer is not legal or ethical
• Preparing a witness if acceptable

Procedural Rules for a Trial

• For the burden of proof, the Plaintiff must convince the jury that its version of the case is correct
• In civil cases, the proof needs to be by a preponderance of evidence
• In a criminal case, the proof required is higher; it must be beyond a reasonable doubt

The Plaintiff's Case

• Opening Arguments are the first step and involve a brief summary, given by each side, of the facts they hope to demonstrate
• Questions to an opposing witness are called cross examinations
• Lawyers only ask questions that elicit helpful answers
• Defendant can move for a directed verdict
• This is asking the judge to decide that the plaintiff has no case worth proceeding with

The Defendant's Case

• The defendant's opening arguments were presented earlier, before the plaintiff presented its case
• Questions to own witnesses are called direct examination
• Questions to opposing witnesses are called cross examination
• Closing Arguments entail a brief summary, urging the jury to believe their side of the case

Jury Instructions and Deliberation

• The judge instructs the jury to evaluate the case solely on the facts of the evidence presented
• The jury discusses the case for as long as needed
• Sometimes the jury must be unanimous; other times, only a majority or a 10-2 vote is required

Motions and Appeals

• The loser might request the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored teh evidence
• The recourse for the loser is to file an appeal, a request for a higher court to examine the facts
• The appeals court may affirm the verdict, modify the award, reverse and remand, or simply reverse the lower court's verdict
• At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal

Constitutional, Statutory, Administrative, and Common Law

• The constitution is compromised by the separation of powers which is the division of the Federal government into three branches: executive, legislative, and judicial
• The three branches are independent and equal with a balance of power
• Federalism is the concept that the national government's power is only limited only to the issues listed in Article I
• The original constitution did not mention rights of citizens, so the first 10 amendments (bill of rights) spelled those out

Congressional and Executive Powers

• Article 1 establishes Congress with two houses, with each state having 2 senators and a number of representatives relative to each state's population
• Article 1 gives congress the powers to create and enact legislation, impose taxes, create copyrights, support the military, declare war, and regulate commerce
• Article II defines the President's powers and responsibilities to enforce the nations laws
• The President can nominate federal judges and propose bills to congress, and the president can veto bills from congress
• The President coordinates international efforts, negotiates treaties and is the commander in chief of the military, but may not declare war

Judicial and Protected Rights

• Article III creates the Supreme court and permits congress to create lower federal courts
• Federal courts adjudicate civil and criminal cases and can also review statutes and governmental action
• Congress shall make no law abridging the freedom of speech
• Speech includes non-verbal communication, such as signs, symbols, and acts (like flag burning), and it is protected, and can be found illegal only if it is intended and likely to promote lawless conduct
• Commercial speech is designed to propose a commercial transaction
• The Fifth Amendment ensures due process and compensation for taking private property for public use
• The 14th Amendment ensures equal protection and that no state shall deny to any person within its jurisdiction equal protection of the laws

Government Treatment of People

• The government must treat people equally, yet they make distinctions among classes of people for different treatment that is usually acceptable
• Acceptable distinctions can be on based on economic and social relations, gender, and sometimes for good reason, unacceptable distinctions are based on race, ethnicity, and fundamental rights

Statutory Law

• Most new laws are statutory, meaning they are legislation passed by either a state legislature or the Congress of the United States
• Any member of Congress can initiate a bill or proposed law, the bill is then debated in a committee in the house where it was introduced
• After debate, if the bill passes both houses, it goes to the President for signature; a President's signature turns a bill into a law
• If the president does not sign the bill (veto), congress can override the veto by passing the bill again, with a two-thirds margin
• Bills are proposed for new issues or worries and unpopular judicial rulings

Common Law

• Criminal law must be set forth in clear terms through statutes rather than lft ot the judicial interpretation
• Common law is judge made law, made up of all the decisions made by appellate courts and predominates in tort, contract, and agency law
• It is baed on stare decisis, meaning, "let the decision stand", and incorporates predictability and flexibility
• Over time changes in societies norms have an effect on long standing common law, and Courts have created exceptions making employers onbliged to help an employee who is suddenly stricken with an emergency situation when the employer is present

Administrative Law

• Federal agencies, such as the Federal Aviation Agency (FAA) and the Federal Trade Commission (FTC), were created to fulfill a need to oversee effects on society.
• They have the power to make regulations which affect citizens and businesses
• Agencies have considerable power within their area, so Administrative Procedure Act regulates how agnecies operate
• Legislative rules of agencies require businesses and people to act a certain way and have the effect of a Congressional stature
• Interpretive rules do not change the law, but define or apply the laws to new situations

Agency Power

• Voluntary submissions, subpoenas, and adjudications are all ways agencies can exercise power
• A voluntary submission occurs when businesses freely give information and readily comply with agency recommendations
• A subpoena is an order to appear at a hearing and produce evidence, which may be relevant to the investigation and under the agency's jurisdiction, or area of authority.
• Adjudicate means to hold a hearing then decide how to proceed with an issue
• If parties are unhappy with results, the Loser may appeal to an appellate board and then to a federal court