Anglo-American Law PDF

**Anglo American Law** **I. Common Law vs. Civil Law** +-----------------------+-----------------------+-----------------------+ | | Common Law | Civil Law | +=======================+=======================+=======================+ | Definition...

**Anglo American Law** **I. Common Law vs. Civil Law** +-----------------------+-----------------------+-----------------------+ | | Common Law | Civil Law | +=======================+=======================+=======================+ | Definition | | | +-----------------------+-----------------------+-----------------------+ | Origin | Anglo-Saxon customary | the Roman Law | | | law | | +-----------------------+-----------------------+-----------------------+ | Type of Argument & | **Adversarial -- | **Inquisitorial -- | | Role of Lawyers | Gegnerisch** | Gericht trägt | | | | Verantwortung** | | | Lawyers ask question | | | | of witnesses, demand | Judges, not lawyers, | | | production of | ask question and | | | evidence, and present | demand evidence. | | | cases based on the | Lawyers present | | | evidence they have | arguments based on | | | gathered | the evidence the | | | | court finds. | +-----------------------+-----------------------+-----------------------+ | Sources of Law | **Law comes from:** | **Law comes:** | | | | | | | 1. **Statutes | - **primarily, from | | | (Gesetze), | a statutory code, | | | enacted by | and judges apply | | | legislatures** | code language | | | | strictly.** | | | 2. **Precedents, | | | | based on court | - **Court opinions | | | opinions in prior | do not carry the | | | case, and** | precedential | | | | effect that | | | 3. **Administrative | common law | | | rules promulgated | opinions do.** | | | under authority | | | | of statue** | - **Rather, the | | | | specific wording | | | Also: Constitutions, | of statutory text | | | Treaties, Court Rules | is applied to | | | | individual | | | Statutory (code) | cases.** | | | language is often | | | | open to broad | - **Because | | | interpretation, and | precedent is | | | is not as extensive | simply | | | in reach as in civil | informative, | | | law systems. There is | rather than | | | no comprehensive | binding (or even | | | compilation | persuasive), | | | (ausführliche | scholars & | | | Sammlung) of legal | academicians are | | | rules and statutes. | considered the | | | | experts on | | | Legal interpretation | legal interpretat | | | relies on the | ion.** | | | **doctrine of stare | | | | decisis (**Latin for | | | | "*to stand by things | | | | decided'')* to | | | | influence the law's | | | | application in cases | | | | before a court. As | | | | such judges are | | | | viewed as the "sages' | | | | = Weise' of the law. | | +-----------------------+-----------------------+-----------------------+ | Role of Juries = | Juries consist only | Juries are present | | Geschworenene- | of laypersons --- | almost exclusively in | | gerichte | never judges and, in | criminal cases, and | | | practice, only rarely | are virtually never | | | lawyers --- and are | involved in civil | | | rarely used outside | actions. They widely | | | the United States. | include judges, to | | | | ensure that their | | | Their function is to | decisions are guided | | | weigh evidence | more by | | | presented to them, | law than passion. | | | and to find fact | | | | (that is, decide what | | | | happened in a case). | | | | In criminal matters, | | | | they are often asked | | | | to determine the | | | | seriousness of an | | | | offense in | | | | determining a sentenc | | | | e | | +-----------------------+-----------------------+-----------------------+ | Role of Judges | - Judges decide | - Judges in civil | | | matters of law | law systems act | | | and in the absent | as inquisitor, | | | of a jury, also | interpreter of | | | finds facts. | code language, | | | | and finder of | | | - As common law | fact. | | | systems are | | | | adversarial, the | - They rely less on | | | judge is seen as | precedent than on | | | a neutral party | commentary by | | | who only takes a | legal scholars. | | | position on an | | | | issue when there | - Civil system | | | is no jury | judges | | | present - and | often join the be | | | even then only at | nch | | | the end of a | | | | case. | | | | | | | | - For guidance in | | | | deciding a matter | | | | of law, judges | | | | rely primarily on | | | | precedent, and to | | | | a far lesser | | | | extent, academic | | | | treatises. | | | | | | | | - Generally, only | | | | highly | | | | experienced | | | | lawyers become | | | | judges, and they | | | | are respected as | | | | high-level offici | | | | als. | | +-----------------------+-----------------------+-----------------------+ | Evidence Taking | - Widely understood | Evidence demands are | | | to be a necessary | within the sovereign | | | part of the | inquisitorial | | | litigants' | function of the court | | | effective pursuit | = Anfordernung v. | | | or defense of a | Beweismitteln ist | | | claim. | hoheitliche | | | | Untersuchungsfunktion | | | - In any event, the | --- | | | litigants = | not within the | | | Prozessparteien | lawyers' role. | | | and their lawyers | | | | undertake to ask | | | | questions and | | | | demand evidence. | | +-----------------------+-----------------------+-----------------------+ **[Summary]** Civil Law: - Judge examines the law by looking for a **legal provision** that fits the case (Art. 838) - Thinking on the basis of general and abstract legal **"provision'' = Vocab** - Most of which are laid down in **"codification''** such as civil code in Germany - Judge works "deductively'' by applying the general rule to the concrete case **"subsumption''** - Relies on the code of [law interpreted by judges] Common Law: - Judge would look for a **comparable case** - e.g. The English Case of Bryne v. Buade from 1863 in which the same thing had happened to - characterized by similar cases that happened in the past -- the so called "**doctrine of stare decisis'**'- Latin for "*to stand by things decided''* binds judges to **"precedents cases''** - If the Judge wants **to deviate from a previous decision** -- the so called **"Distinguishing''** is used to determine the difference between the case at hand and the precedent - Relies on [similar case from the past] **A. Legal Systems of the World** **I. Taxonomy** = A hierarchical organizational structure for the classification of concepts or things - Civil Law (most widespread system of law) - Common Law - Customary Law - Religious Law - Hybrid/Mixed Systems **1. Civil Law = characterized by their reliance on legal codes that function as the primary source** **of law** - Is a legal System rooted in the Roman Law (Origin) - The Digest of Justinian: Corpus Juris Civilis - Was Comprehensively codified and disseminated starting in the 19^th^ century - Most notably with France's Napoleonic Code (1804) in France -- Code civil and - Germany's civil law and Scandinavian/Nordic Civil Law - Today it is applied in approximately **150 countries** worldwide - Systematic written codes - Authoritative sources: codified legislation (in strict hierarchical order) - Decisions are binding only to the parties to the case - Inquisitorial system (judge as inquisitor, written records) a\) French Law: - France, the Benelux countries, Italy, Romanian, Spain, more countries in Latin America, Africa and the Middle East b\) German Law - Germany, Austria, Russia, Greece, Brazil, Croatia c\) Nordic Law - Northern Europe: Denmark, Finland, Iceland, Norway, Sweden d\) Napoleonic to Germanistic influence: - The Italian civil code replaces the original one and introduced German elements - This approach has been copied by Portugal (1966), Netherlands (1922), Brazil (2002), Lithuania (2004), Argentina (2014) e\) Germanistic to Napoleon influence: - The Swiss civil code is mainly influenced by the German civil code and partly influenced by the French civil code. Copied by Turkey in 1926 **2. Common Law =** system founded not on laws made by legislature but on judge- made laws, which in turn based on custom, culture, habit and previous judicial decisicions - Origins: Anglo-Saxon customary law - ,,Common" to the entire English realm = Gemeinsam für das gesamte engl. Reich. - **Doctrine of Reception** = Rezeptionslehre - refers to the process by which English law becomes applicable to a British Crown Colony or Protectorate. - **1/3 of the world's population live in Common Law countries** - Canada (excluding Quebec); Australia, New Zealand, **most of the UK** (England, Wales, Northern Ireland) - Approx **3. Customary Law -** "Primitive Law," "Indigenous Law;" "Folk Law" - Based on the customs of a community - Customary law is rooted in the practices, traditions, and beliefs that are commonly accepted and followed by members of a particular community. It reflects the moral and ethical values of that group. - Applied in approx. 40 countries : Africa, some Pacific Island Nations, Europe, and the Middle East - Laws are passed: Oral or written - Social relations - It governs relationships between family members, clans, neighbors, and other social groupings. The law is not just about legal rules but also about maintaining social harmony and the proper functioning of society. It influences things like family structure, marriage practices, communal land use, and how disputes are resolved - Reconciliatory rather than punitive - In many societies, when conflicts arise, the primary goal is to restore peace and harmony within the community rather than impose severe penalties. **4. Religious Law** - Based on sacred texts or religios traditions - Unalterable (except for Canon Law) - Differing in Methodology: - Canon Law: codified - Halakha: static quality - Sharia & Figh: legal precedents - Canon Law (Christian): The Holy See - Halakha (Judaism): Orthodox and Conservative Jews - Sharia & Figh (Islam): Afghanistan, Iran, the Maldives, parts of - Nigeria, Saudi Arabia, Yemen **5. Hyprid Law systems** - Scotland: Roman and continental law, customary Scottish Law (High Middle Ages), Common Law - Louisiana: Louisiana Civil Code (private law); Common Law - Roman-Dutch Law: based on Roman law as applied in the Netherlands (17th and 18th centuries) (Guyana, South Africa, Botswana, Sri Lanka , Namibia, Indonesia) **History of Common Law began to use in year 1250** Elements of the Common Law - **Uncodified** = not writen in a single, comprehensive legal code. Instead it is based on judicial decisions, cour interpretations, and established practices - **Black's Law Dictionary:** "The body of law derived from judicial decisions, rather than from statutes or constitutions" - **Precedent** = doctrine of **stare decisis**, which means that courts should follow **precedent** - previous rulings in similar cases -- unless there is a strong reason to change the interpreation of law - **Case law** (judge-made law): judicial precedent; stare decisis - **Adversarial system** s.S.1 = two opposig sides present their cases to an impartial judge (or jury) - judge as referee; party presentation - **Judge Role** = ensures a fair trial - **Juries = s.S.1** - **Norman origins** - **Writs** = royal orders = Gerichtsbeschlüsse - **Equity** = Fairness court of Chancery apply equity just outcome! - (Courts of Chancery; Lord Chancellor) - **1215: Magna Carta** - It was signed by King John of England in 1215 and was a response to complaints about royal power and the abuse of the monarchy. It laid down principles such as due process, the right to a fair trial and limits on arbitrary= willkür power and established the basis for the rule of law - **1679: Habeas Corpus Act (31 Cha. 2. c. 2)** - The Habeas Corpus Act of 1679 was a leading piece of legislation in England that strengthened the principle of freedom from unlawful detention. It required anyone who was arrested or imprisoned to be brought before a court to determine whether their detention was lawful. - **Unwritten constitution** (England and Wales) - **Separation of powers** = The division of government into branches (executive, legislative, and judiciary) - **Supremacy of Parliament** = Parliament is the supreme legal authority, and its laws are the highest form of law - **Rule of law** = Everyone is subject oft he law **Sources of Law in England and Wales** - **Case law** - **Statute law** - **Statutory interpretation** - Delegated legislation, European law , Custom - **Equity** - Treaties, Law reform **Case Law - UK** - **stare decisis** (= Let the decision stand = being bound by former decisions) - **ratio decidendi** (reason for decding = explanation of the legal principle underlying the decision; basis of stare decisis) - **obiter dicta** (= "things said by the way" = explanations which are not part of the ratio decidendi) - not directly relevant tot he case - **Judicial Precedent** - Donoghue v Stevenson \[1932\] AC 562 : "Paisley Snail" or "Snail in the Bottle" case - landmark court decision in English tort law - establishing general principles of duty of care **Donoghue v Stevenson \[1932\] AC 562** Facts : "On August 26 1928, Mrs Donoghue's friend bought her a ginger-beer from Wellmeadow Café \[1\] in Paisley. She consumed about half of the bottle, which was made of dark opaque glass, when the remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a snail floated out causing her alleged shock and severe gastro-enteritis. Mrs Donoghue was not able to claim through breach of warranty of a contract: she was not party to any contract. She therefore filed a claim against the manufacturer, Stevenson, which went all the way to the House of Lords." Held: " Lord Atkin My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care. It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense. I think that this appeal should be allowed." Ratio : the maker of a product is under a legal duty to the consumer to take reasonable care that the product is free from defect likely to cause injury to health Obiter : Neighbour Principle (a duty of care is owed to persons closely and directly affected by an act, where it is reasonably foreseeable that act may cause those persons injury) **Court Hierarchy -- Civil Procedures** +-----------------------------------+-----------------------------------+ | **Hierarchy of the main civil | **Hierarchy of the criminal | | courts** | courts** | +===================================+===================================+ | 1. Country Court | 1. Magistrates' Court | | | | | 2. High Court (Divisional Courts | 2. Crown Court | | and ordinary High Court) | | | | 3. High Court (King's Bench | | a. Chancery Division | Division) | | | | | b. Family Division | 4. Court of Appeal (Criminal | | | Division) | | 3. Court of Appeal (Civil | | | Division) | 5. Supreme Court | | | | | 4. Supreme Court | | | | | | 5. European Court of Justice (on | | | European Law) | | +-----------------------------------+-----------------------------------+ **Diggresion: R v R (1991) 4 All ER 481/\[1992\] 1 AC 599** In 1990, the defendant, referred to in the judgment only as R to protect the identity of the victim, had been convicted of attempting to rape his wife. He appealed the conviction on the grounds of a purported marital rape exemption under common law. R argued that it was not legally possible for a husband to rape his wife, as the wife had given irrevocable consent to sexual intercourse with her husband through the marriage contract, which she could not later withdraw. Both the Court of Appeal and the House of Lords confirmed the rape conviction, stating that there is no exception in English law for marital rape\[1\] and that it is therefore possible for a husband to rape his wife **Commonwealth -- Privy Council** - **Judicial Committee Act 1833** = with the power to hear appeals from the British colonies and territories - **Privy Council = Highest/Final court of appeal for many Commonwealth countries** - 32 jurisdictions in total = can still apeal to the Privy Council - 11 independent nations = own legal system (e.g., Jamaica, The Bahamas, Mauritius etc.) - **Not binding on English courts =** English courts do need to follow decisions mady by this Council **Statute law - UK** - **Statutes** = Acts of Parliament (law passed by Parliament) - **Bicameral System** = legislative strukture consisiting oft wo seperate chambers oder houses - The UK- Parliament consits of two houses - **House of Commons** - Lower house = represents the general population - **House of Lords** - Upper house = repesents specific regions, states or interests - **Monarch** - **Currently King Charles III plays a ceremonial role in legilative process** - **Symbolic role** - Gives **Royal Assent** to bills passed by houses, which ist he final step in making a bill into law - **Draft Bill = Gesetzesentwurf** - a suggestion for a new law before being formally introduced in Parliament - usually prepared by government - **Bill** - a suggestion for new legislation or amendment to existing law that is formally introduced in Parliament - **Public Bill** - Introduced by governement minister, applies to the entire population - Education, Healthcare - **Private Members' Bill** - Introduced by Member of Parliament or a member oft he House of Lords who is not part oft he government - Less likely become law without governemnt support - **Private Bills** - affects only specific individuals, organizations, or localities, rather than general public - **First Reading** - formal introduction of the bill in either the House of Commons or the House of Lords. - the title of the bill is read out, but there is no debate on its content - **Second Reading** - first opportunity for members of the House to debate the general principles and purpose of the bill. At the end of the debate, members vote on whether the bill should proceed to the next stage. If the bill passes the second reading, it moves forward in the legislative process. - **Committee Stage** - bill is examined in detail by a smaller group of members called a committee. - **Report Stage** - chance for the House to review the committee's amendments and suggest further changes - **Third Reading** - final opportunity for members to debate the contents of the bill in its final form. - no further amendment at this stage, and the debate focuses on whether to approve the bill as it stands. After the debate, a vote is taken. If the bill passes the third reading, it moves on to the other house (House of Commons or House of Lords) for consideration - **House of Lords / House of Common** - „ping-pong\" process can continue until both Houses agree on the final version of the bill - **Royal Assent** - final step in the legislative process. - Once both Houses of Parliament have agreed on the bill, it is sent to the monarch for approval. While the monarch's approval is a formality, the monarch must give Royal Assent for the bill to become law. Once granted, the bill is officially an **Act of Parliament** and becomes part of the law. **Statutory interpretation - UK** - Interpreation in a way that reflects **Parliamentary intention** - **Interpretation Act 1978** - It helps to clarify terms and procedural matters, such as definitions of words or how to understand certain types of references - **Explanatory notes = to help explain** - 4 basic approaches of statutory interpretation: - The literal rule = word in their plain meaning, clear wording - The golden rule = slight modifying the language,when absurd - The mischief rule (Heydon's Case \[1584\]) = focus on issues - The purposive approach = interpreation reflects purpose - Rectification = correct a statute if there has been a mistake Internal Aids to Statutory Interpretation - **Rules of language** - **Ejusdem generis** = oft he same kind - **Expressio unius est exclusio alterius** - \"the expression of one thing excludes others. - Cars and trucks -- then also motorcycles - **Noscitur a sociis** - a word is known by the company it keeps - **Presumptions** - Statutes do not change the common law - Existing rights are not to be interfered with - Legislation does not operate retrospectively - (they do not apply to events that happened before the law was passed - Statutes do not affect the Monarch -- personal immunity from laws **Equity** **"Fairness"** = where the strict application of common law would lead to unfair or unjust outcomes - Separate Bodies of Law - **"Equity should prevail**" (The Earl of Oxford's Case \[1615\]) - **Equitable maxims** - "He who comes to equity must come with clean hands" - "He who seeks equity must do equity" - "Delay defeats equity" - **Equitable remedies** = Rechtsmittel - **Injunction** = Einstweilige Verfügung : orders party to do or not to sth. To prevent harm - **Specific performances =** demands that a party fulfill its contractual obligations - **Rectification** = allows to correct a contract if there is amistake - **Rescission** = Anfechtung, effectively putting the parties back in the position they were in before the contract was made - Today: property law, law of trusts, mortgages = Hypotheken **C. People working in the Legal Systems** **Judge** **1. UK** - **Role of judges: neutral arbiters** - **Judicial review = review deciscions made by public bodies, ensuring they act lawfull** - **illegality** - **procedural unfairness** - **irrationality** decisicion - **breach of human rights** = violationg - **review does not apply for primary legislation !!** - **Appointment & Training** - **judicial Appointment Commission (JAC)** = body responsible for selecting judges in England/Wales - **post-qualification experience** - **Supreme Court** judges are selected by **selection commission** - no career judiciary! - **Wigs: only in criminal cases** **2. Magistrates = lower- ranking than a judge handle minor offenses/ less serious cases** - **Also called: Justices of the Peace -- lay people** - **key attributes:** - **sound judgement** = ability to make fair and reasonable decisions based on law/facts - **social awareness** - **understanding and communication** = being able to understans legal prinicples clearly - **maturity and sound temperament** = ability to remain calm and objektiv under pressure - **commitment and reliability** - **"of good character"** - **summary offences** = handle minor offenses/ less serious cases **3. US** - **Role of judges:** [larger flexibility] for judicial review; activism vs restraint - **Standard of review:** - **unconstitutionality** = If a law or measure violates the law, it is abolished - clearness = Law must be clear to avoid violating - "The Constitution does not prohibit legislatures from enacting stupid laws" (Thurgood Marshall) - **Appointment and Training** - Federal judges: nominated by the President and confirmed by Senate - State judges: appointed or elected - **Gavel** +-----------------------------------+-----------------------------------+ | **UK** | **US** | +===================================+===================================+ | - **neutral arbiters** | - **policy influencers** | | | | | - **almost no judicial review** | - **judicial review | | | (unconstitutionality)** | | - **appointment: JAC** | | | | - **appointment: depends** | | - **post-qualification | | | experience** | - **advocate, attorney, or | | | magistrate** | | - **magistrates: assisted by | | | judges** | - **magistrates: assist | | | judges** | | - **wigs** | | | | - **gavel** | +-----------------------------------+-----------------------------------+ **The legal professions** **[UK]** **Solicitors = juristiche Fachleute, keine Anwält, Dokumentarbeit** - **are transactional/advisory lawyers** - **complete law degree in university or ma4r5y become legal executives** - **Solicitors Qualifying Examination (SQE 1 & 2)** - **The Law Society supports them** **Barristers = juristische Fachleute = Experten in den jeweiligen Rechtsbereichen** - **courtroom advocates** - **law degree** - **Bar Professional Training Course (after completing their law degree)** - **Are required to join in one of 4 Inns of Court** - **(Lincoln's Inn, Gray's Inn, Inner Temple, or Middle Temple)** - **being "called to the bar" = officialy recognized as members of the profession** - **Pupillage = Praktikum, practical training** - **The Bar Council : representative body for barristers** **[USA ]** - **unified legal profession,** no distinction between solictors and barristers as in the UK - lawyer in the US can perform both advisory and courtroom roles - **university & law School** - **pass bar exam** **Juries** **[UK: ]** - members of the community/ public who are selectes to participate in trials - usually **12** - responsible for determining **facts of the case** (Judge is responsible for interpreting the law) - verdict according to their understaing of the facts = Urteil - **Involved criminal cases:** - indictable offences = serious cases like murder - offences that can be charged in either way - **involved in civil cases:** - **malicious prosecution** - **false imprisonment** - **fraud** - **libel & slander (= defamation**): discretion of the court - **selection process:** - Jury Central Summoning Bureau = randomly selects jurors from the population using a - jury duty - Trial includes panel of juries and actual jurors - **jury vetting:** - **prosecution: Stand By** : allows the prosecution to request that a potentional juror not selected without a reason - **prosecution and defence:** Challenge for Cause, need a valid reason - **challenges to the array :** The selection process was biased or unfair - challenges to the polls: objections concerning composition of jury and fairness of trial - **judges: discretionary power :** wheter a jury should be used in a certain civil case **US: Jury trial** - **Is a Constitutional right** - **grand and petit juries (seperate from the court)** +-----------------------------------+-----------------------------------+ | **Grand Jury (group of 16- 23 | **Petit Jury** | | citizens)** | | +===================================+===================================+ | - **5thAmendment: "No person | - **6th Amendment: "In all | | shall be held to answer for a | criminal prosecutions... by | | capital, or otherwise | an impartial jury of the | | infamous crime, unless on a | state and district wherein | | presentment or indictment of | the crime shall have been | | a grand jury..."** | committed..."** | | | | | - serving term: until | - **7thAmendment: "In suits at | | discharge; up to 18 months | common law, where the value | | | in controversy shall exceed | | - pre-trial stage | twenty dollars, the right of | | | trial by jury shall be | | - accusatory and investigating | preserved..."** | | = ermitteln | | | | - serves for one particular | | Accusatory: issuing an indictment | trial | | ("true bill") = Anklage | | | | - trial participants | | Investigating: obtaining and | | | reviewing documents, hearing | - only decide about the facts | | witnesses i.a. | of the case | | | | | - functions | - unanimity | | | | | - indictment: 12 jurors concur | | +-----------------------------------+-----------------------------------+ - **jury selection:** - "the process of summoning, questioning and selecting jurors to serve on a jury for a particular trial" - **jury summons** = randomly selected from pools, registrations - **voir dire** = to speak the truth; questioning - where attorneys and the judge ask potential jurors questions to determine their fitness - **excused for cause :** if they have conftlict of interests that would prevent them from being impartial or fair in the case - **peremptory challenge** : allows attorney to remove a potential juror from jury pool without reason - **hung jury** - unable to reach a unanimous verdict - deadlock: they cant agree on the outcome - if they fail, the judge may declare a mistrial - prosecution decides wheter to retry the case with a new jury or drop it **D. The justice System** **Civil Justice System** (Civil legistlation starts with a claim form) **UK - courts** - **civil courts / Trials** - **Woolf Report** reform in 1999: Civil Procedure Rules (CPR) 1998 and Practice Directions - The reforms aimed to improve access to justice, reduce costs, and speed up proceedings - **3 tracks: Legislation depending on the value of the action** - small-claims track (value \< 10,000 GBP) - fast track (value 10,000 GBP \< X \< 25,000 GBP) - multi track (value \> 25,000 GBP) - **Tribunals =** specialist courts - parallel to the courts handles particular area of the law - Deals with disputes between citizens and the state (exception: Employment Tribunal) - **Alternative Dispute Resolution (ADR) mechanisms:** - **arbitration** both parties agree to let a third party, the arbitrator, decide the dispute (legally binding decision) - **mediation** mediator who helps the parties find an agreement - **conciliation** conciliator **actively** suggests possible solutions **US (federal System)** +-----------------------------------------------------------------------+ | **Court System of the US** | | | | - - - - - | | | | - - - - | +-----------------------------------------------------------------------+ - **Jurisdiction** - Which court is allowed to handle certain case - And for that a court has to have: **subject-matter & territorial jurisdiction** - **subject-matter jurisdiction:** court's authority to hear a specific type of case, such as cases - federal questions - diversity of citizenship: Plaintain and defendent are cizizens of different countries - exclusive jurisdiction: only federal courts can handle the case - concurrent jurisdiction: both federal ans state courts have jurisdiction over a case - supplemental jurisdiction: allows federal courts to hear related to state law - **territorial jurisdiction:** Refers to a court\'s authority over a person or property within a certain geographical area - **personal jurisdiction** : The court's power to make decisions affecting a person - **in rem jurisdiction** : The court\'s power over property or a status - **venue :** Refers to the proper location or court where a case should be heard - **pre-trial motions:** movements both parties can make before the trail actually starts - e.g. as summary judgement : parties agree that only the question of law needs tob e decided bc. The facts of the cases are not disputed at all. No jury needed, but **judge!** - parties asksthe court to decide the case based on the facts before it goes to trial - **discovery**: pre-trial process allows each party to gather information from the other party - e.g**., interrogatories** : Written questions that must be answered under oath. - **depositions:** Sworn testimony taken outside of court, which can be used later in trial. oral - **requests to produce or inspect**: Requests for documents, evidence, or items relevant to the case. - **the trial** - trial participants : judge, attorney, witnesses, and the jury - **opening statements:** Both parties present an overview of the case. First chance to addresse the jury (1. Plaintiffs turn = who broght the claim to court, 2. Defendant) - **case in chief of plaintiff** is presented next: evidence, witnesses (prove, credivilty) - moment when then plaintiffs witness give evidence rules of evidence - **burden of proof**: necessity of establishing a particular fact = legal truth - "on the balance of probabilities": " if the judge think its more probable that the claim is justified, they decide in favor of a party - In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place." (Baroness Hale, Re B) - **cross-examination** (The opposing party questions each witness **redirect examinatio**n (the original party to the witness re-questions them) **recross-examination** (the opposing party questions again) rest - to undemine the plaintiffs story - **defendant's case in chief** - Defendant present their evidence and witnesses after plaintiff - cross-examination --a redirect examination recross-examination - **Plaintiffs Rebuttal:** - Plaintiff has the chance to reply to evidence of defendant - **closing arguments** : Both parties summarize their positions and ask the jury or judge to rule in their favor - **judge's instruction to the jury** - The judge provides the jury with legal guidance on how to deliberate - **Ends with jury deliberations and verdict** - The jury discusses the case and renders a **verdict** (guilty/not guilty or liable/not liable) former decision oft he jury **Criminal Justice Systems - Trials** UK - **Criminal Trials** = dtermine wheter an accused person is guilty or not guilty of committing a crime - **Sentencing** = If a defendant is found guilty, the judge imposes a **sentence**, which can include imprisonment, fines, community service, or other penalties - **Youth Justice under 18** - **adversarial system** to establish proof - **presumption of innocence :** A defendant is presumed innocent until proven guilty. - **burden of proof** **"beyond reasonable doubt**" lies with the **prosecution**. No one needs to prove innocende. The prosecution needs to prove the defendants guilt. If there is a doubt they are not guilty - **summary offences:** Less serious crimes (e.g., minor assaults, thef) **trialed in magistrates courts** vs **offences triable either way** (can be heared in **both:** magistrates courts or crown court) vs **indictable offences:** Serious crimes that are always tried in the **Crown Court** - **disclosure = vorlegen** - Both parties are required to disclose any new relevant evidence before trial. - Any material that is relevant to the case must be discloused by the prosecution - **plea bargaining = mildere Strafe** - Plea bargaining is the process by which the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence - **trial** - **opening speeches:** prosecution outlines the case against the defendant - examination-in-chief (proesecution presents evidence/witnesses) cross-examination (defendant) re-examination "closing the case" (by prosecution) - defence can either make submission of "no case to answer" or start of **defence case** - examination-in-chief cross-examination re-examination "closing the case" - "route to verdict" jury retires verdict (guilty/not guilty) **US** - **rules of evidence** - **witness testimony** lay and expert witnesses - **exhibits** actual (weapon) , documentary, and demonstrative evidence (diagrams, photos) - **types of evidence** direct (testimony) circumstantial (indirect) evidence such as fingerpringts - indizienbeweis - **Impeachment:** Challenging the credibility of a witness (record of lying, u cant trust them..) - **hearsay :** Statement made outside of court brought up to prove a point is disallowed as evidence (exceptions can happen) -- second hand hearing - **Miranda warnings** - **Mirandav. Arizona 384 U.S. 436 (1966)** - case name, volume number, court name (U.S. supreme court), starting page and the year it was decided - established the requirement for police officers to inform suspects of their rights, including the right to remain silent and the right to an attorney. It's against self-incrimination." - **the right to remain silent** **B. Current Affairs** **Qualifications for the Presidency** - Natural-born citizen of the United States (not: citizenship!) - Min. 35 years of age - Min. 14 years of residency within the United States **How to became President** **Before:** Candidates from each political Party Campaign throughout the country to win the favor of their Partymembers **Step 1 : Primaries and caucueses = are held in each state to choose the canditates fort he poltical parties** - **In Caucus** **=** A meeting of the local memebers of a political party to selecte the best candidate through series of discussion and votes. /A subsitute for a primary election = Ersatz für Vorwahlen - **Primaries =** Party Members vote for the best candidate that will Represent them in the upcpming general elecetion **Step 2: National Conventions = Nomination** - Each party hold a national convention to select a **final president nominee** - At each convention, the presidental candidate chooses a running mate **(Vice Presidental Candidate)** **Before:** Presidental candidates campaign throughout the country to win the support of the general population **Step 3: General Election -- Election Day : first Tuesday of November** - People in every state across the country vote for one president and vice president - When people cast their vote, they are actually voting for a group of people known as electors = Wahlmänner **Step 4: Electoral College =** Meeting of electors who cast votes for the/determine president and vice president - In each electoral college system each state gets a certrain number of electors based on it's representation in congress - Each elector cast one vote after the general election, and the candidate who gets more than half wins. - A candidate needs a majority of **270/538** electoral votes. (Washington, D.C has plus 3 electors included) - Counting of electors' votes by Congress - The newely elected president and vice president are appointed in january - **No direct vote = they select electors who vote on their behalf** **Presidential General Election** - Every **4 years** vote for President and Vice President - **Independent candidates** (run for president without being affiliated with any political party)and **candidates from minor parties** (may not win, but can influence the outcome) - **Voter registration**: process by with eligible citizens sign up to vote in elections - **Ballots**: official documents used by voters to cast their vote during general election *paper/electronic* - **Early voting:** for people who can not vote on the designated Day - **Absentee voting:** request absentee ballot (ill, disabled) - **Voting by mail**: receive a mail-in ballot - **Expats:** Citizens livin abroad, they can vote via absentee ballots or voting e-mail **15th Amendment** The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." **19th Amendment** "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex." **24th Amendment** "The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other ta **28th Amendment** "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age **The Trump Cases** **[Four criminal cases : ]** **Indictments:** The Federal Election Interference Case The Georgia Election Interference Case The Classified Documents Case **Verdict:** The Hush Money Case - New York State Court - Timeline: - 30 March 2023: a grand jury voted to indict (=accuse)Trump - 4 April: criminal charges unveiled (=enthüllt) - 34 felony counts (= Anklagepunkt) of violating NY law on corporate record-keeping - Defense team: motion to dismiss (= Antrag zu Abweisung) - Justice Juan Merchan: motion denied + gag order - 15 April: trial began - 5 October 2023: motion to dismiss the indictment on grounds of presidential immunity - 1 December: motion rejected - 7 December: notice filed that an appeal against the dismissal is planned - 11 December: SC Jack Smith petitions to skip the appeal stage  22 December: Supreme Court rejects the petition - 6 February: the Court of Appeals for the District of Columbia Circuit confirms ruling - 12 February: Trump appeals to the United States Supreme Court - 28 February: the Supreme Court agrees to hear the case - 25 April: oral arguments are held - 1 July: 6-3 decision issued - Criminal contempt - Six weeks trial; 1½ days deliberation - 26 November 2024: sentencing hearing - 30 May 2024: verdict (guilty) - 26 November 2024: sentencing hearing - Sentence ≤ 4 years imprisonment (first-time offenders, non-violent cases: probation, home confinement, community service, fine) - The Federal Election Interference Case - U.S. District Court for the District of Columbia - Federal prosecutors led by special counsel Jack Smith - 4 federal crimes: - Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States) - Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding) - Count 3: 18 U.S.C. § 1512(c)(2), 2 (Obstruction of, and Attempt to Obstruct, an Official Proceeding) - Count 4: 18 U.S.C. § 241 (Conspiracy against Rights) - 1 August 2023: grand jury approved an indictment - Initial schedule: to begin 4 March 2024 - New argument: immunity bid - 1 July 2024: Supreme Court decision