Chapter 1 -- The American Legal System

The function of a nation's legal system is to provide for social controls to

accommodate an ever-changing business, social, and political environment.  In the
American legal system, governance is divided among central, state, and local
divisions of government.  Each level of government consists of three branches:
executive, legislative, and judicial.  This separation of power serves the
important purpose of preventing excessive accumulation of power in any one person
or branch. 

The U.S.  legal system is a common-law system first developed in England that
consists of several important classifications of law.  These ways of organizing the
law are necessary to an understanding of the system. 

Chapter 1 -- Outline
 1.1 Nature of Law
      A.  A Dynamic System
      B.  Rights and Duties
      C.  Schools of Legal Thought
      D.  Functions of the Legal System

 1.2 Sources of Law

      A.  Levels and Branches of Government
      B.  The Constitution
      C.  Lawmaking
      D.  Executive Action
      E.  Administrative Regulation
      F.  Legal Treatises
      G.  Federal vs.  State

 1.3 Common Law

      A.  The Foundation
      B.  Precedent
      C.  Stare Decisis
      D.  Equity

 1.4 Classifications of Law

      A.  Substantive vs.  Procedural
      B.  Criminal vs.  Civil
      C.  Public vs.  Private

 1.5 Internet Sites

1.1 NATURE OF LAW A.  A Dynamic System

B.  Rights and Duties
C.  Schools of Legal Thought
D.  Functions of the Legal System

A.  A Dynamic System. Law provides a system for social control.  Law is a process
in which a government produces a set of rules and regulations that are
enforceable by sanctions and penalties. 

1.  Thus, our legal system is a system of control that recognizes and enforces
rights and duties. 

2.  The law is dynamic.  It responds to changing societal beliefs. 

a.  A flexible legal system is required to accommodate an ever-changing

business, social, and political environment. 

3.  Law is not the exclusive method of social control.  Additional controls
include religion, ethics, morality, custom, societal norms, and family
beliefs. 

B.  Rights and Duties. The adoption of rules and regulations establishes both
rights and correlated duties affecting individuals and their relation to one
another. 

1.  A right is a legal claim that others not interfere with a protected
interest; a duty is a legal obligation not to interfere with the protected
interest. 

2.  These are the two fundamental types of individual rights:

 a.  Personal rights
Property rights
b. 

3.  Personal rights are those rights one possesses solely by virtue of being a
person and a citizen of this country, e.g., the right to assemble, to vote,
to free speech.  Refer to Chapter 4, Constitutional Law. 

a.  Personal rights also arise from contract, such as a contract for
personal services.  Refer to Chapter 8, Contracts: The Agreement. 

4.  Property rights are rights in a thing that can be disposed of or

transferred by gift, sale, or assignment.  There are two types of property
rights:

a.  Real -- rights in land, buildings, and attached fixtures.  Refer to

Chapter 22, Real Property: Interests and Rights. 

b.  Personal -- residual category of property rights.  It includes all

rights in property that are not real property rights, e.g., contracts,
accounts receivable, automobiles, and money.  Refer to Chapter 21,
Personal Property and Bailments. 

5.  Rules and regulations are applied and enforced under the authority of an
established government in determining both proper and improper conduct. 

a.  Law deters excessive self-help (the protection of one's rights through
personal means without resorting to the legal process).  The legal
system strongly encourages mutually negotiated settlement in contrast
to self-help that would be, or would lead to, a breach of the peace or
illegal conduct. 

b.  EXAMPLE: The law does not condone a landlord's forcibly entering the
apartment of a tenant who has not paid rent (self-help).  Nor does the
law condone more subtle methods, e.g., changing the locks and locking
the tenant out.  The legal system provides a remedy for enforcing the
right of the landlord to receive rent and the corresponding duty of the
tenant to pay rent. 

C.  Schools of Legal Thought. The study of law is referred to as jurisprudence. 

Over time, differing schools of jurisprudence have emerged, each with a
discrete perspective on the definition of law.  The following list identifies
major schools of jurisprudential thought:

1.  Natural law. This school believes the standard for human conduct is a set
of laws founded on preordained rights.  It believes that God, and not man,
is the source of all law. 

a.  Laws of political bodies that are consistent with those preordained
rights are recognized as just. 

b.  Natural law principles are expressed in such documents as the

Declaration of Independence and the Constitution of the United States
by such words as "We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain
inalienable rights.  .  .  ."

2.  Historical school. This school defines law as those rules that have been
developed in society and tested over time. 

a.  The historical school propounds the view that changes in the norms of
society will gradually be reflected in the law. 

b.  This school does not adhere to situation ethics, which permits actions
to be judged within their contexts instead of by reference to absolute
principles.  Thus, under the historical school, conduct should conform
to stable principles established by precedent (prior legal decisions). 

3.  Legal positivism. Positive law is law resulting from an authorized process
of a legitimate governmental authority.  Legal positivists propose that
there is no law without government and that all valid positive laws should
be obeyed and enforced without regard to another standard (e.g., whether
the law is consistent with natural law). 
 4.  Power or command school. This school considers all law to result from
power.  The law is the set of rules established by those who have the power
to enforce them. 

5.  Legal realism. This school focuses the definition of law, not on what is
stated to be law, but on what is the effect or result of the legal system
in operation. 

a.  Legal realism is pragmatic.  It proposes that law should be dynamically

directed toward meeting the changing needs of society and its
constituents. 

6.  Law and economics school. This school promotes market efficiency as a
fundamental issue in legal decision-making.  Thus, both the costs and the
benefits of a proposed rule are weighed in determining its desirability. 

a.  The more a proposed law would interfere with free operation of the
market, the more it would be scrutinized. 

7.  Critical legal studies. This movement proposes that legal rules are used by
the powerful to maintain the status quo.  The school propounds that
disputes should be resolved by applying arbitrary rules that are based on
what is fair in the circumstances. 

NOTE: Notwithstanding the differences among these well-known

jurisprudential schools, each has contributed to the current legal system. 

D.  Functions of the Legal System. A primary function of the legal system is to
resolve disputes while maintaining stability and predictability in society and
permitting orderly change. 

1.  Although not perfect, the legal system provides a civilized forum in which
individuals might settle their disputes. 

a.  The legal system is structured to facilitate out-of-court settlement by

the parties.  Refer to Chapter 3, Civil Litigation and Procedure. 

b.  EXAMPLE: Modern pretrial civil procedure permits discovery whereby each
party gains information known by the other party.  The scope of
material available for discovery is quite broad.  The theory behind
broad discovery is that, if both sides know the strengths of their
respective cases, each is capable of evaluating the possibility of a
favorable judgment.  This process enhances the likelihood of out-of-
court settlement.  A similar process is applied in criminal cases. 

2.  The legal system provides a measure of predictability in societal

relations.  When a person interacts with others in society in any capacity,
(s)he may anticipate with reasonable certainty that standards of acceptable
conduct will be met.  This expectation is commonly referred to as law and
order. 

3.  An important function of the legal system is protecting public health and
safety. 

4.  An essential function of the legal system is preservation of the state. 

The legal system ensures that changes in our political system are brought
about by peaceful political action and not by revolution. 

5.  One of the primary functions of the legal system is to ensure that rules
are enforced.  The legal system penalizes wrongdoers.  Penalties are one
component of an effective and enforceable legal system. 

6.  The legal system balances competing interests, e.g., the conflict between
unbridled economic growth and environmental protection. 

7.  The U.S.  legal system strives to maximize individual freedom. 

a.  EXAMPLE 1: In the U.S., parties are permitted to enter into any type of
private agreement to the extent the agreement does not violate either
the law or public policy. 

b.  EXAMPLE 2: A person is free to swing a clenched fist in the air. 

However, if (s)he causes apprehension of an unprivileged, unwanted
touching of another or actually commits such an act, e.g., striking the
nose of a neighbor, the law curtails this freedom. 
1.2 SOURCES OF LAW A.  Levels and Branches of
Government
B.  The Constitution
C.  Lawmaking
D.  Executive Action
E.  Administrative Regulation
F.  Legal Treatises
G.  Federal vs.  State

A.  Levels and Branches of Government. In the U.S.  legal system, power is divided
among a central (federal) government and the state governments (with local
county and city governments as subdivisions of each state government).  This
division is required by the U.S.  Constitution, the supreme law of the land. 

1.  The central government is accorded only the authority necessary to deal
with national needs and affairs, whereas state and local governments retain
control over most other matters, such as health, safety, morals, and the
general welfare of the public. 

2.  Each level possesses three branches:

a.  Executive (President, governor)

Legislative (Congress, state legislature)
b.  Judicial (courts)

c. 

Each level of government promulgates its own laws, rules, and

3.
regulations.

Administrative agencies promulgate rules and regulations having the

4.
force and effect of law.

The administrative process involves delegation of power to an

administrative agency. The agency, staffed by specialists, works to
a.
solve problems and improve conditions related to its area of
responsibility.

Administrative agencies might be viewed as an informal fourth

b.
branch of government.

The Constitution. The U.S. Constitution provides authority and structure

B.
for the federal government.

The Constitution sets forth the enumerated powers of the federal

government. The Constitution does not deprive the states of power to
regulate public health, safety, morals, or general welfare, but it does
1.
limit the powers of the federal government to those necessary for a
federation of states to operate as one nation. Of the 16 enumerated
powers listed in the Constitution, some of the most important are

a. Provide for the general welfare

Regulate interstate commerce
b. Regulate commerce with foreign nations
Levy and collect taxes
c. Enact bankruptcy law
Create a system to protect patents and copyrights
d.

e.
 f.

Furthermore, the federal government has certain powers that, although

not expressly granted in the Constitution, are implied by its
2.
provisions. These powers, although not specifically named, are deemed to
be necessary and proper for carrying out the enumerated powers.

The 10th Amendment to the Constitution states that "powers not delegated
3. to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively or to the people."

Thus, subject to constitutional safeguards, the states are free to

a.
fashion their own laws as part of their inherent sovereignty.

They are deemed to have the inherent right to exercise police

power, which is authority to preserve the public health, safety,
1)
morals, or general welfare. The federal government does not have
this residual authority.

Sovereignty, in this context, is each state's independent

b.
governmental and lawmaking authority.

The Constitution also allocates federal power among the three branches
4.
of government.

a. Congress (the legislative branch) has the power to enact laws.

The judiciary has the power to interpret the law and decide
b.
(adjudicate) cases and controversies.

The courts also determine whether actions of the other branches

1)
of government are constitutional.

This power of judicial review is not expressly granted. It is

a) exercised pursuant to the Supreme Court's interpretation of
the Constitution.

The President (the executive branch) has the power to ensure "that
c.
the Laws be faithfully executed."

The allocation of powers among the three branches of government is known

5. as the separation of powers. The separation of powers serves two primary
purposes:

It prevents excessive accumulation of power in any one branch and,

a.
hence, limits overall government power.

It enables each branch to exercise its constitutional prerogatives

b.
without undue influence by the other branches.

Although the Constitution requires a separation of powers, there is some

6.
overlap of powers.

The power to legislate (make law) is vested in Congress. However,

a. the judiciary is often said to make law when it interprets statutes
or the Constitution.

Judges also make law when they decide cases by applying common-law
b.
principles to issues for which no statutory law has been enacted.

The executive branch exercises both rulemaking and adjudicatory

c.
powers.

Issuance of regulations (rulemaking) is a quasi-legislative

1)
function.

Resolution (adjudication) of controversies, e.g., the licensing

2) disputes decided by the FCC (Federal Communications Commission),
is a quasi-judicial activity.

Most state constitutions are comparable to the U.S. Constitution with

7.
respect to both separation and overlap of powers.

Lawmaking. Initially, judge-made law or common law was the primary source
C. of U.S. law. However, during the 20th century, enacted law has become the
primary source of new law in the U.S.

1. Much common law has been codified.

a. Codification is the enactment of common-law principles into

 statutes.

Most states have codified common-law principles into state statutes

b.
that expand common-law definitions.

EXAMPLE: The common-law definition of burglary required "the

breaking and entering of the dwelling house of another at night
1)
with intent to commit a felony therein." Most modern statutes
cover entry at all times and in all kinds of structures.

Theoretically, there is no federal common law. Federal law is

c.
statutory.

However, judicial interpretations of enacted federal law are

1)
also a source of federal law.

Federal courts may apply substantive state common law, e.g., in

2) deciding a tort action pursuant to its jurisdiction over
diversity of citizenship cases.

2. Lawmaking power may be exercised in more than one way.

Enacted law, in the broadest sense, results from the exercise of

a.
legislative and quasi-legislative power.

Quasi-legislative power refers to power delegated to agencies to

1) promulgate rules and regulations having the force and effect of
enacted law.

2) Quasi means like or similar to.

b. Enacted law may be considered to include

1) Federal and state constitutions

2) Federal treaties

3) Federal and state statutes

Formal executive orders and proclamations issued by the

4)
President or by state governors

5) Administrative rules and regulations

6) Local ordinances

Enactments of legislatures usually address issues affecting large

3.
numbers of people.

Statutes are ordinarily prospective in effect. They apply to future

actions. In contrast, common law has a retroactive focus because it
4. immediately concerns concrete disputes arising from past actions; that
is, a specific existing dispute (case or controversy) must be brought to
the judiciary's attention before it can resolve the problem.

Most statutes are broadly written, providing mere outlines of

5.
legislative policy.

Often, before the scope of a statute becomes clear, it must be

a.
construed (interpreted) by a court.

The language in a statute may be subject to multiple

b.
interpretations.

The courts' primary endeavor is to determine legislative intent,

c.
that is, what the legislature intended the law to be.

In the interpretation process, courts apply rules of statutory

d.
construction.

The words and phrases are usually given their plain meaning.
Thus, the courts presume that the legislature intended to use
1)
the words or phrases as they are understood in ordinary
communication.

a) When the plain meaning is obvious, no further statutory

interpretation is required. If the plain meaning of the words
and phrases of a statute is not obvious, the courts must
consider the context in which the words or phrases are used
and the legislative purpose. In some cases, a court might
adhere to a congressional purpose that is not consistent with
 the obvious plain meaning of the words and phrases of the
statute.

When courts interpret language that is part of a large body of

e.
legislation, they must analyze

1)
The context in which the single word or phrase is used
2)
The general purpose of the statute
The policies underlying the enactment
3)
The circumstances and occasion of its use
Any other test the court may deem appropriate in ascertaining
4)
legislative intent
5)

In determining legislative intent, courts often refer to committee

f. reports, hearings, floor debates, failed amendments, and any other
aspect of a statute's legislative history.

Executive Action. A form of law less usual than statutory or common law is
D. the executive order. The President of the United States possesses power and
authority to promulgate laws known as executive orders.

An executive order is issued by the President pursuant to a specific

1.
statute or based on the powers inherent in the office.

EXAMPLE: In 1971, President Nixon issued Executive Order No. 11615,

which placed a temporary freeze on wages, salaries, rents, and
a.
prices. Executive Order No. 11615 had the same force and effect as
a statute.

Executive orders also may be issued by the executive of a city or a

b.
state.

An executive order that violates a provision of the Constitution is

c.
invalid.

The President is the sole repository of constitutional executive power.

2. However, many executive responsibilities are delegated to others within
the executive branch.

a. The executive branch has exclusive law enforcement powers.

Unlike congressional powers, most executive powers are implied, so

b.
they need not be specifically enumerated in the Constitution.

An important executive power derives from the authority of the President

3. to enter into treaties with foreign nations. Such treaties are valid
only upon confirmation by the Senate.

Thus, treaty-making power is split between the executive and

a.
legislative branches.

Administrative Regulation. Administrative law is the branch of public law

that governs the powers and procedures of administrative agencies. Day-to-
E.
day operation of both federal and state government rests largely in the
hands of administrative agencies.

1. Some well-known federal agencies are the

a.

b.
Internal Revenue Service
Federal Communications Commission
c.
Federal Trade Commission
Securities and Exchange Commission
d.

The United States has turned to the administrative process to address

2. the increasingly complex social, environmental, and economic issues
faced by our industrial society.

Validly enacted regulations of an administrative agency, when published

3. in the Federal Register, have the force and effect of law. Refer to
Chapter 5, Administrative Law.

F. Legal Treatises. A legal treatise is a systematic scholarly exposition of

principles and analysis of law. Legal treatises contribute to the
 development of law. Examples of legal treatises are the Restatements.

A series of Restatements of various subject matter areas of the law has

1. been prepared by the American Law Institute, a private group of lawyers
and academics.

A Restatement is a synthesized orderly statement of "the law as it

a.
would be decided today by the great majority of courts."

b. Restatements are not, in themselves, law.

1) They are educated general statements of what the common law is.
They are written in the form of statutes: ordered and
2) categorized.

c. They are frequently referred to in court opinions.

They provide a source for the policies furthered by, and the
1) purposes of, the law. They may also contain illustrations of
sound reasoning.

They are helpful in addressing issues when the law in the

2)
jurisdiction is unclear.

At times, a court will state in its opinion that it adopts the

3) Restatement position. The case law of the state is then based on
the rendition in the Restatement.

Restatements of the following legal subjects have been published:

agency, conflict of laws, contracts, foreign relations, judgments,
d.
property, torts, trusts, restitution, unfair competition,
suretyship and guaranty, the law governing lawyers, and security.

Federal vs. State. The U.S. Constitution clearly states that, when federal
G. law and state law conflict, federal law prevails (Supremacy Clause).
However, the great bulk of law is state law.

Each state has its own statutes containing laws enacted by its
1.
legislature.

Thus, in the U.S. there are at least 50 bodies of contract law, 50

a.
bodies of corporate law, 50 bodies of real property law, and so on.

Moreover, just as at the federal level, state governments have

2. administrative agencies with the power to promulgate and enforce rules
and regulations.

Each state has its own court system that continuously develops the body
3.
of common law (except Louisiana) and case law.

Case law generally consists of court interpretations of the

a.
constitution, statutes, and administrative regulations.

Most states also apply common law as it applied in England at

approximately the time of the American Declaration of Independence
b.
(the late 1700s). This common law has further developed with
subsequent case law and has been replaced in part by statutes.

Local governments have the power to pass ordinances that apply to

4.
persons and things subject to local jurisdiction.

The term ordinance typically refers to an act of a city council, a

a. county commission, or other local governmental entity that has the
same force and effect as a statute.

An ordinance differs from a law in that laws are enacted by a state

b.
or federal legislature.

5. Hierarchy of law in the United States

Federal State

1.  The U.S.  Constitution 1.  State constitutions

2.  Statutes and treaties 2.  State statutes
3.  Administrative rules and 3.  Administrative rules and
regulations regulations
4.  Case law 4.  Common law and case law

1.3 COMMON LAW A.  The Foundation

B.  Precedent
C.  Stare Decisis
D.  Equity
A.  The Foundation. The U.S.  legal system is built upon a common-law system first
developed in England.  It relies heavily on the judiciary as a source of law
and on the adversarial method (use of a legal proceeding to resolve a genuine
controversy contested by two opposing parties) for adjudication of disputes. 
The judiciary in a common-law system develops a body of law that serves as
precedent for determination of later controversies.  Common law is synonymous
with case law and judge-made law. 
B.  Precedent. Previously decided cases provide authority for the disposition of
future cases. 
1.  Precedent tends to neutralize prejudice of individual judges. 
2.  The basis for choosing and applying prior judicial decisions (precedent) to
decide current disputes is the doctrine of stare decisis (Latin for "to
stand by decided matters"). 
3.  Thus, under the common-law system, stare decisis binds or requires a court
to follow established precedent. 
C.  Stare Decisis. Stare decisis requires that the case before the court be decided
in the same manner as prior cases "presenting similar facts and legal issues."
1.  Stare decisis is a method to ensure the legal system is consistent. 
Similar cases tend to be decided the same way. 
2.  Stare decisis promotes efficiency for citizens, lawyers, and the judiciary
by providing guidelines (prior decisions) for deciding new cases. 
3.  Stare decisis promotes early settlement because it produces a relatively
uniform and consistent body of law.  Lawyers for both sides are able to
research the existing case law and advise a client on the probable outcome
of a controversy. 
4.  Stare decisis provides stability in the legal system.  Courts are bound to
rely on decisions based on prior experience and wisdom. 
5.  The requirements of stare decisis are not absolute.  Courts hesitate to
overrule an earlier decision but are expected to do so in appropriate
circumstances. 
a.  To overrule means to void the holding (rule of law) of a prior case (as
applied to the new dispute).  In a different and subsequent case, a
court reaches a decision on the point of law that varies from the
decision made in the prior case.  Such change is most often warranted
by one of the following:
1) Factual distinctions (If facts differ, the prior case is not
applicable.)
2) Evolving community standards
Society's notions of fairness
3) Practical necessity

4)
b.  When the rule of law in an earlier case is overruled by a later
decision, a new precedent is established.  This new precedent is then
followed by lower courts of the system in subsequent disputes. 
c.  Stare decisis does not preclude correction of prior erroneous
decisions. 
d.  Thus, although common law promotes efficiency and stability, it also
allows sufficient flexibility to accommodate social change. 
6.  The common law or case law that results from application of stare decisis
can be modified by legislation. 
7.  In the U.S., if a decision has been rendered by a higher court in a
jurisdiction (federal or state) and that decision can be applied to a case
currently before a lower court in the same system, the higher court's
decision is binding on the lower court and must be followed. 
a.  Courts in different jurisdictions sometimes express different views
with respect to similar principles of law and the application of these
legal principles to similar factual situations. 
b.  A judge may consider, but is not required to follow, a decision in a
jurisdiction different from the one in which the case is being tried. 
D.  Equity. The U.S.  Constitution provides in Article III, Section 2 that "The
Judicial Power shall extend to all Cases, in Law and Equity." An equitable
remedy exists only when the court determines that the remedy at law (usually,
recovery in money for losses) is inadequate. 
1.  The classic equitable remedy is the injunction.  An injunction is a court
 order requiring a party either to act or to refrain from acting in a
particular manner.  An injunction is a preventive measure that guards
against future injuries, not a remedy for past injuries. 
2.  The U.S.  adopted the concept of equity from the English system. 
a.  Historically, equity developed as a separate body of law in response to
strict adherence of common-law courts to a rigid system of writs. 
1) Under the writ system, an action could be brought only if a specific
and narrowly defined "King's writ" applied to the facts of the
case. 
2) Rigidity and inadequacy of the writ system led to establishment of a
Court of Chancery. 
3) The judges of the Court of Chancery applied their own discretion and
sense of justice to disputes if no adequate remedy was provided in a
traditional common-law court. 
a) EXAMPLE: Sapling's pet rabbits regularly nibble in Bush's
garden.  At common law, Bush's only remedy was monetary damages
for trespass.  Monetary damages awarded by a court of law would
not compensate Bush for damage to the garden in the future.  More
efficient than repetitive lawsuits would be for a person in
authority to order Sapling to restrain his rabbits from entering
Bush's garden.  In the Court of Chancery, the king would refer
this matter to the chancellor in equity, who would issue such an
order in the king's name. 
3.  Other equitable remedies include
a.  Specific performance of a contract
Rescission (cancellation of a contract)
b.  Reformation of a contract, will, etc. 
Declaratory judgment (but some courts consider this to be a legal
c.  remedy)

d. 
4.  Courts applying equitable principles exercise broad discretion in deciding
what is both morally and legally just under the circumstances. 
a.  Over the years, courts of equity have developed maxims (statements
espousing general principles of law) to assist the judge.  Some of the
more prominent maxims used by equity courts today are
1) Equity will not suffer a wrong to exist without a remedy. 
Equity regards the substance as opposed to the form. 
2) (S)he who seeks equity must do equity. 
Equity regards as done what ought to be done. 
3) Equity aids the vigilant. 

4)

5)
5.  A person must bring a suit in equity within a reasonable time.  What
constitutes a reasonable time varies with the facts of the case. 
6.  In the U.S., the barrier separating courts of law and courts of equity has
been dismantled.  Most states have abolished separate equity courts and
permit one court to resolve disputes by applying both legal and equitable
principles. 
7.  Finally, in deciding an equitable claim, a court is not bound by stare
decisis to follow precedent to the degree it would be in rendering judgment
on a legal issue. 
a.  Equity is premised on producing a fair and just result in all good
conscience in the specific circumstances.  The judge is accorded wide
latitude to exercise sound discretion in reaching such a result. 
8.  An introductory comparison of an action at law and an action in equity
follows:

LAW EQUITY

Before the period

Time:
stated in Within a reasonable time
Lawsuit must be
statute of limitations (laches)
filed
expires

Plaintiff shows that

Plaintiff proves each
(1) Legal remedy is inadequate. 
element of
Required legal cause of action,
(2) Without equity,
e.g., of breach of
       irreparable injury would
contract. 
result. 
 Right to have jury Judge decides facts and applies
Decision maker
decide facts law. 

(1) Order to act or not to act,

or
Monetary compensation
Remedy (2) Declaration of status,
for loss
       e.g., ownership of
property

Legal proceeding to
Contempt of court proceeding,
Enforcement take
punishable by jail or fine
money or property

1.4 CLASSIFICATIONS OF LAW A.  Substantive vs.  Procedural

B.  Criminal vs.  Civil
C.  Public vs.  Private
A.  Substantive vs.  Procedural.  Substantive law defines and regulates rights and
duties of parties that may give rise to a cause of action (a claim in both law
and fact sufficient to demand judicial attention).  Procedural law refers to
the mechanics of the legal process, including those related to pleading,
discovery, service of process, jurisdiction, and evidence. 
1.  Substantive law is the body of constitutional directives, statutes,
administrative rules, and common-law principles that define rights and
duties. 
a.  The laws of contract, property, and tort are examples of substantive
law. 
2.  Procedural law is the body of law that governs how the judicial or
administrative process is accessed and operates. 
a.  EXAMPLE: In a lawsuit implicating a neighbor for an action in tort
based on negligence, the substantive law provides the rules that
determine the elements of the negligence claim.  The procedural law
provides the rules that determine, among other things, which evidence
may be admitted or excluded at trial. 
3.  Even if a court applies the substantive law of another jurisdiction, it
applies the procedural rules of its own jurisdiction. 
4.  Both criminal and civil law have substantive law and procedural law
components. 
B.  Criminal vs.  Civil.  Criminal law protects society's interests by defining
offenses against the state as the representative or embodiment of society and
prescribing appropriate punishment for their commission.  Civil law provides
an injured party the opportunity to bring suit seeking private remedies to
compensate for his/her injury. 
1.  Criminal penalties (fines, imprisonment, or both) differ from civil
remedies (monetary damages or equitable relief). 
2.  Criminal violations are deemed to be wrongs against society as a whole. 
3.  Civil violations are noncriminal injuries to specific private parties. 
4.  The same behavior may violate both civil law and criminal law. 
a.  EXAMPLE: Shorty became angry with friend Tim and hit him on the head
with a basketball shoe.  Tim incurred medical expenses of $10,000
because of his injury.  Both a civil action and a criminal action may
be brought against Shorty for the battery.  (A criminal battery is
defined as the unlawful application of force to the person of
another.  A civil battery, a tort, is a harmful, offensive, and
unprivileged contact with the plaintiff's person.)
C.  Public vs.  Private.  Public law deals primarily with the organization of
government and with its relation to the people.  Private law is concerned with
the legal relationships among private individuals. 
1.  The major areas of public law are
a.  Constitutional law (Chapter 4)
Criminal law (Chapter 6)
b.  Administrative law (Chapter 5)

c. 
2.  Of the many branches of private law, fundamental to the study of business
are
a.  Contracts (Chapters 8 through 12)
Property (Chapters 21 through 23)
b.  Business associations (Chapters 28 through 31)
Torts (Chapter 7)
c. 

d. 
 3.  Diagram of classifications of law

1.5 INTERNET SITES

The U.S.  Code, Code of Federal Regulations, and legislative and regulatory matters
may be researched at the site maintained by the House of Representatives:
http://www.house.gov/

Cornell also maintains a site with a variety of materials:

http://www.law.cornell.edu/

The Library of Congress has a site at

http://www.loc.gov/