Chapter 1a: Introduction to Law
Ha Nguyen and Megan Gatley
REVISED BY Ryan Niehaus and Sarah Walton
I. LAW - What is it and what does it do?
According to Merriam-Webster dictionary, law is “a rule of conduct or action prescribed
or formally recognized as binding or enforced by a controlling authority.”1 However, attempting
to define law is a difficult task because there are many different ways that law is used and
interpreted. It can be used to define specific rules as well as represent a broad system. The
American Law Institute has developed a broad definition of law. This definition defines law as
courts using standards and principles in making a decision related to the disagreement presented
in the court.
According to the American Law Institute, law is
constructed of three main elements. The first is legislation that
is created by political bodies. The second element is historical
precedent which is made up of relevant previous court rulings.
The third and last element is the basis of judicial action which
is a system comprised of legal concepts and techniques.
Examples of Legislation
- Constitutions
- Statutes
- Bylaws
- Treaties
- Ordinances
-
According to Professor H. E. Willis, law consists of four elements. The first one is that
law provides a system for “social control.” The second one is that law takes “social interests”
into consideration and safeguards them. The third element is that those interests are maintained
by people having authority over the behavior of others. The fourth element is to establish a court
system which enables people to have authority over others. Thus, with the help of courts, human
behavior is standardized by law. In addition, justice is the goal of law, but law and justice are not
the same thing and sometimes the law may not satisfy our idea of justice, or vice-versa.
Law is used for many different purposes. It serves social functions such as peacekeeping,
checking government power and promoting personal freedom, facilitating planning and the
realization of reasonable expectation, promoting social justice, and protecting the environment.
Normative Law
Normative law, also called jurisprudence, is a field of study that generally describes the
essence of law, its philosophical and theoretical foundations. There are several different schools
of thought within jurisprudential scholarship, including legal positivism, natural law, American
legal realism, and sociological jurisprudence.
1
http://www.merriam-webster.com/dictionary/law
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Legal positivism believes that law comes from people who have authority to create the
law, typically politicians. This view believes that whether the laws developed are good or bad
does not matter. The laws must be followed. Thus, morality and legality do not relate to each
other and the laws should not be interpreted to include a person’s point of view.
Natural law believes that there is a higher law than the one set by the government.
Natural law says that moral rules, which are universal, connect all humans together. Since there
is a higher law, universal moral rules, laws created by the government that are unjust should not
be followed. Though the idea of a natural law cannot be used as a defense in court, judges can be
influenced by their own ideas of just and unjust laws.
The central tenant of American legal realism is the belief that because law is a human
creation it is inherently imperfect, being vulnerable to human limitations and mistakes.
American legal realism believes that law should be based on law in action. Law in action is
defined as how the people who enforce and interpret the law behave. In short there are two
defining principals of American legal realism. First, law is indefinite and, as such, legal officials
must and often should consider extralegal matters in making their decisions. Second, law is
whatever judges or other relevant officials do and what they do not do2.
Sociological jurisprudence involves many different aspects. A general definition of
sociological jurisprudence is the reflection of society’s prevailing values through the process of
ordering. Sociological jurisprudence includes positive law as well as social controls, which
includes social values and customs. Thus, sociological jurisprudence cares only about the fact
that law is influenced by moral values. The implication of sociological jurisprudence is that law
should change over time to reflect what is occurring at the time in society. This ideology is
illustrated by the Supreme Court’s consideration of an “evolving standard of decency” most
recently in death penalty cases3,4.
REVIEW
Types of NORMATIVE LAW or JURISPRUDENCE
Legal Positivism
Natural Law
American legal realism
Sociological Jurisprudence
2
Leiter, Brian, “American Legal Realism”, in The Blackwell Guide to Philosophy of Law and Legal Theory (W.
Edmundson & M. Golding, eds., 2003)
3
Trop v. Dulles 356 U.S. 86 (1958) and Atkins v. Virginia, 536 U.S. 304 (2002)
4
http://www.deathpenaltyinfo.org/u-s-supreme-court-roper-v-simmons-no-03-633
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A. Formal Methods of Enforcement
There are several different methods of enforcement. Some methods of enforcement
include the Department of Justice, the courts, and the police.
1. Department of Justice
Methods of enforcement in the U.S. at the federal level are enforced primarily by the
Department of Justice. The Department of Justice is composed of the following divisions: Antitrust, Civil, Civil Rights, Environment and Natural Resources, Criminal, Tax, Federal Bureau of
Investigation, Bureau of Prisons, U.S. Marshals Service, U.S. National Central Bureau –
International Criminal Police Organization, Immigration and Nationalization Service, Drug
Enforcement Administration, and the Office of Justice.
2. Courts
The courts have the duty to apply all laws in order to administer justice throughout the
judicial process. They also have the power of judicial review. According to Dr. Daniel E. Hall
“judicial review…permits courts to review the actions of the executive and legislative branches,
and of the states, and declare acts that are in violation of the Constitution void” 5. Courts also
decide cases, and in doing so interpret the precedents and statutes that pertain to the case before
the court.
3. Police
The police enforce laws. Methods of enforcement can be specific or general. Specific
enforcement is when a law enforcement official does just one job such as traffic ticket violations.
Conversely, a police officer or other law enforcement officer who imposes a range of laws, say
anything from speeding to violent crimes, is acting as general enforcement.
II. Law and Morality
According to Dr. Jan Garrett, professor at Western Kentucky University, there are six
relationships between law and morality. The first relationship is “The existence of unjust laws
(such as those enforcing slavery) proves that morality and law are not identical and do not
coincide.”6 The second relationship is “The existence of laws that serve to defend basic values-such as laws against murder… --prove that the two can work together.”7 The third is that laws
describe crimes that are wrong but laws do not normally deal with mere thoughts or wishes
5
Hall, Daniel E., Criminal Law and Procedure. New York: Delmar Cengage Learning, (2009).
Garrett, J. Basic Observations on Law and Morality. http://www.wku.edu/~jan.garrett/320/320lawmo.htm
7
Garrett, J. Basic Observations on Law and Morality. http://www.wku.edu/~jan.garrett/320/320lawmo.htm
6
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unless they are acted out in some fashion.8 The fourth relationship is that law and morality are
different in the manner that each achieves obedience. For laws, people obey “at least partly
through fear of punishment” 9 whereas with morality, people obey because what is morally
correct is “habit-like or second nature.” The fifth relationship is that “Morality can influence the
law in the sense that it can provide the reason for making whole groups of immoral actions
illegal.” 10 The sixth relationship is that “Law can be a public expression of morality which
codifies, in a public way, the basic principles of conduct which a society accepts. In that way it
can guide the educators of the next generation by giving them a clear outline of the values
society wants taught to its children.”11
A. Overlap of law and morality
Law and morality have a strong tendency to overlap. As seen under normative law,
certain views of jurisprudence, including natural law and sociological jurisprudence, describe
that morality should be involved in decision making related to laws. Some valid laws created by
the government may be immoral because they have bad substance in them. Some laws are wrong
and so the issue of morality comes into question whether the law should remain. There are
certain things that should be legal because they are morally right and should be illegal because
they are morally wrong. For example murder is morally wrong and is illegal.
B. Laws are unenforceable
However, morality and law do not always go together. Some laws are unenforceable. In
society there is a moral code of conduct that the majority of people follow. For example, laws
should not be made regarding small morality issues such as a law that says lying to family
members is illegal and violators can be assessed a fine or imprisoned. To enforce a law about
lying to family members would be difficult and increase the enforcement methods and increase
the number of cases courts would have to see because lying to family members is typically a
small infraction and occurs often. Thus, not all laws are enforceable, or not reasonably so. Also,
when there is a self-harming action that people conduct in private such as smoking in their cars
or home, or acts of self-mutilation. These behaviors may be immoral in some people’s opinion,
but there should not be a law making them illegal because it would be difficult and unreasonable
to enforce. Banning tobacco and alcohol would be unworkable.
C. Areas law should not enter
Also, there are some areas of people’s lives where they do not want the law to interfere.
These issues often involve personal choices and decisions that have no tangible, detrimental
8
Garrett, J. Basic Observations on Law and Morality. http://www.wku.edu/~jan.garrett/320/320lawmo.htm
Garrett, J. Basic Observations on Law and Morality. http://www.wku.edu/~jan.garrett/320/320lawmo.htm
10
Garrett, J. Basic Observations on Law and Morality. http://www.wku.edu/~jan.garrett/320/320lawmo.htm
11
Garrett, J. Basic Observations on Law and Morality. http://www.wku.edu/~jan.garrett/320/320lawmo.htm
9
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effect on the larger population. For example, there is a great deal of controversy surrounding the
issue of same sex marriage. It seems that this is an area where the law has overstepped itself,
making such unions illegal when in reality it affects no one but the people being married. This is
similar to the issue of consuming alcohol. During prohibition, the government tried to outlaw
alcohol entirely in order to prevent growing social troubles such as spousal abuse, infidelity, and
illnesses (such as liver disease) that were associated with drinking. Obviously prohibition ended
and instead of banning alcohol entirely society today regulates risky behavior associated with
alcohol, such as drinking and driving, while recognizing the individual’s right to enjoy an
alcoholic beverage if they so choose(within limits).
III. Sources of Law
There are many different sources of law. Some sources of law include constitutional law,
statutory law, case law, administrative law, private law, and international law.
A. Constitutional law
In the United States, law is ultimately derived from constitutional law. The people elect
individuals who form a government as outlined by the Constitution. They then establish laws
based on the will of the people who elected them. Thus, Constitutional law embodies the will of
the people. Constitutional law in the United States exists at both the state and federal level with
the Federal Constitution being the supreme law of the land. It has two functions. The first
function is developing the structure of government and the power that each branch will be given.
The second function is to prevent governmental departments from taking actions that exceed
their authority. In short, constitutional law exists to limit the government and protect the people.
It helps to prevent the government from taking too much power, from violating individual rights,
or restricting individual freedoms. Within constitutional law, statutory law is developed.
B. Statutory law
Statutory law is law that the legislative body of the government creates. The laws that the
legislature passes are called statutes. Statutes are written laws. The statutes can be found in codes
which are books published specifically of the statutes. These statutes require that either
something does not occur or that something does occur. Statutory law is a type of substantive
law which can also include procedural law. Both the federal government and states governments
develop statutes; the federal statutes usually apply to all fifty states while state statutes apply
only to the state where it is passed. City or county ordinances are also statutory. Today all
criminal law is statutory.
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C. Administrative law
Administrative agencies are agencies that the government creates to help meet the needs
of specific groups in the United States and enforce statutes created by the legislature.
Administrative laws, which are also known as administrative regulations, are similar to statutes
in that they are written and published. However, administrative law is created by administrative
agencies. Since the laws created are not by the legislature, these administrative agencies are the
ones that will hear court cases related to administrative law. An example of administrative laws
could be something like car exhaust emission standards from the EPA.
D. Case law
A source of law that is used often is case law. Case law, which is commonly referred to
as common law, is based on decisions made by judges in court trials. Case law is used for future
trials related to the similar issue when statutes and other sources of law do not apply. These
decisions by courts that are used for guidance are called precedent. Common law is a type of
substantive law. In the United States, much of contract law and tort law (such as negligence) are
covered mainly by common law.
E. Private law
Private law is an array of topics. Private law relates to legal issues that occur between
individuals. A topic that is included under private law is that of contracts. Law of contracts
means that individuals form contracts, and thus are creating a legal obligation on the individual.
If the contract is broken, there will be consequences, such as monetary compensation to the
injured party.
F. International law
International law relates to issues that arise between nations. In most countries, there is
Public International Law and Private International Law. Public International Law relates to
whether the rights of a nation or citizens of a nation have been infringed upon by another nation,
whereas Private International Law relates to issues arising between individuals or businesses
with circumstances that have a connection with more than one country. Even though there are
two different types of international law, occasionally the line is blurred because issues arising
affect both Public International Law and Private International Law. International law is similar to
the laws of nations. It includes similar concepts and procedures.
IV. Substantive Law vs. Procedural Law
Substantive law is law that dictates the rights and duties people have in their society. It is
the legal rights that a person has with another person as well as the rights the person has with the
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state. Procedural law is law that dictates how governing bodies should uphold, implement, and
apply the substantive laws. The methods that are described by procedural law include procedures
of courts, rules for allowing evidence, and various administrative processes. Thus, procedural
law is the process of implementing substantive law. Whereas, substantive law is the law that
members of a society must follow. An example of substantive law would be the rule that stealing
is not allowed. The procedural law would then be the rules that the courts must follow to go
through the trial process. For example, in the United States, the courts cannot take away the
thief’s right to a fair trial.
V. Criminal Law vs. Civil Law
Criminal law is the law under which the
government prosecutes individuals for
committing a crime.
A. Criminal Law
Criminal law, which is also known as penal law, is the law under which the government
prosecutes individuals for committing a crime. Criminal law is used to punish individuals for
their acts against society. Criminal law is also applied to corporations since corporations tend to
not treat damages properly. Therefore, the role of government in enforcing criminal law is
important to the society, to the citizens, and to the business environment.
What is a crime? A crime is the act which violates the rules or laws. In the U.S, crimes
can be classified as felony or misdemeanor. The classification depends on the situation and the
seriousness of the crime. Felony is a serious crime such as murder, robbery, kidnapping, etc.
Misdemeanor is a less serious crime such as theft. Therefore, the punishments for committing a
felony are usually much harsher than for misdemeanors.
Criminal sanctions: Criminal case can be solved by fines, seizing money or property,
probation, or incarceration. These punishments can be summarized in five theories as
1. Retribution: punishment is necessary. When a person is convicted of a crime he or she
needs to be punished in some way.
2. Deterrence: punishment is used to discourage the continuation of the wrongdoings or
crime and to prevent other people from committing the same crime.
3. Incapacitation: punishment is needed to keep criminals apart from society so they cannot
victimize the society again. Imprisonment and or the death penalty satisfy this theory.
4. Rehabilitation: punishments could help to transform the criminal to a better person,
which is good for both the person, himself, and for the society.
5. Restitution: punishment needs to repair the damages suffered by the victim; this can
happen through fines or other means. The theory is similar to the logic of civil law.
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Quick Review:
Do you know ?????????????
Five theories of criminal sanctions:
1) Retribution
2) Deterrence
3) Incapacitation
4) Rehabilitation
5) Restitution
Serious crime levels have declined since 199312
B. Civil Law
Civil law, on the other hand, is used to solve violations of the obligations between
individuals in society. Civil law plays an important role in our everyday lives as it provides
remedies for noncriminal issues that arise between individuals. Sometimes, the government, not
only citizens, can be involved in a civil case. For example a city government might sue a
construction contractor. However, most of the time, civil law involves two or more private
parties.
Civil law is used to resolve violations
of the obligations between
individuals.
Parties in the civil lawsuit include plaintiffs and defendants. Plaintiffs are the individuals
(citizens, corporations, or governments) who file the lawsuit against the defendants who breach
the contracts between the two parties or do wrong to the plaintiffs. Civil law includes different
areas: tort law, tax law, business law, and many other topics.
“Punishment” in civil law is different from criminal law. Civil law solves the problem
peacefully; therefore, there is no force applied to defendants such as putting them in jail or
giving death penalty. Although defendants in civil law will not be executed if they lose, they are
ordered to reimburse the plaintiffs for what the defendants have done wrong to the plaintiffs. The
reimbursement is called a remedy.
12
Bureau of Justice Statistics
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Do you know???????
The number of tort cases increased through 1996, then decreased but stabilized recently.13
C. Civil Law vs. Criminal Law Compare and Contrast
Table 1: Summary – Civil Law vs. Criminal Law
Civil law
Who files the
Criminal law
Private parties
Prosecutors (government)
Defendants may need to pay for
Defendants may
lawsuit?
Punishment
damages
1) Be put in jail/prison
2) Pay fine to government
3) Be executed as death penalty
Burden of proof
Most of the time, the burden of proof is The burden of proof is on the state.
on the plaintiff (plaintiff needs to
Defendant is assumed to be innocent
prove by “preponderance of the
and does not need to prove anything.
evidence” – more than 50% -that the
Prosecutors need to prove that the
defendant is liable for the damages)
defendant ‘s guilt is “beyond
except that if the plaintiffs has made a
reasonable doubt”
prima facie case*, defendant needs to
prove he is innocent.
13
Bureau of Justice Statistics
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Prima facie means at first view in Latin. A prima facie case in which the evidence is
enough for the plaintiff to win except that defendant can rebut. In this case, the burden of proof
shifts to the defendant.
Sometimes, a case can be conducted under both civil law and criminal law. The
defendant can be charged and prosecuted in criminal court by the state and sued in civil court by
other private parties such as the family of the victim.
Example: The O. J. Simpson case was one of the most publicized criminal trials. In 1995 O. J. Simpson,
a football player and actor was criminally prosecuted for the murder of his ex-wife and her friend.
However, he was found innocent. Later, in an entirely separate civil case, Simpson was sued for
"wrongful death" by the victims' families under civil case. At the close of the civil case, in 1997, a Jury
found Simpson liable for the damages of wrongful death of his ex-wife and battery of the friend and he
ended up paying millions of dollars in damages.
VI. Law vs. Equity
Equity means fairness. The theory of equity is applied to law to make sure law brings
fairness to people and the society. Equity is to support and perfect the law by having the courts
of equity, which deal with the matter of equity or fairness.
Quick review: equity is system of law
originating in the English chancery and
comprising a settled and formal body of
legal and procedural rules and doctrines
that supplement, aid, or override common
and statute law and are designed to
protect rights and enforce duties fixed by
substantive law (Webster)
HISTORY: For nearly 300 years, from the time of
the Norman Conquest in 1066 until 1362, French
was the language of the courts, rather than
English. This is why many legal words have a
French background. Grand and petty larceny and
grand and petty juries are examples. Grand is the
French word for large. “Petty” comes from the
French word “petit” which means small.
Courts of law and courts of equity started in England in the 13th and 14th century.
Courts of law started first with the role of the judge as we have in our present system. However,
under the rule of kings, people turned to kings for petitions for money damages. They did this
by filing a form (a “writ”) which was special to that type of case. To solve the problem of
extraordinary requests for which there was no writ, a new court was created. A “chancellor” was
appointed as the judge. This is the beginning of the separate court of equity. The purpose of this
court was to solve problems which the court of law could not since the court of law is obligated
to follow the specialized rules of law—that is, problems for which there was a writ. The court of
equity did not need this specialized form or writ.
The main differences between court of law and court of equity is the remedy and the
procedures in court. First, courts of equity never use juries; the judge makes the decision.
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Usually in courts of law juries are available. Some of the remedies which are available in court
of equity are not used in law courts. Law courts mostly use money remedies as punishment for
the defendants. However, for equity court, equitable remedies are important instead of money
recovery. Some of the remedies used in equity court are injunction, specific performance,
reformation, and recession.
An injunction is the order from a court to prevent a party (an individual, an organization,
a corporation, or government) from continuing doing some acts, which violate the other party’s
Example: Suppose that a union threatened to go on strike for improper reasons not allowed in
the union contract or the union threatened violence. A court might issue an injunction stopping
such action.
rights. In law court, there would be fine to pay for the damages
Specific performance is the order of court which forces a party to perform or obligate to
Example: Suppose that you made a contract to buy a house or a piece of land. Each piece of
real estate is considered to be unique. Since there may be no property exactly like the one you
intended to buy, the buyer would normally be entitled to specific performance on the contract if
the seller does not turn over the property. The court would order the seller to turn it over .
the act which is identified in the contract. This helps the plaintiff to enjoy the result of the act
which he expects to happen from the contract, instead of simply receiving the money.
Reformation is the remedy in which the court is allowed to rewrite the contract to reflect
the initial intention of party or to make the contract fair and equitable. Reformation is used when
one party can prove that what is written on the contract does not reflect the actual agreement and
the contract is bias or not fair to both parties.
Example: Assume you agreed to rent a house for $400.00 a month. The lease mistakenly
leaves out the period and it says “$40000” a month. A cour would reform the lease to get it to
the right amount.
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R
escissio
Page 11
n is another type of remedy. Unlike others, a rescission allows the court to unwind the contract,
which brings all parties back to the pre-contractual position. Rescission can be used when there
is lack of consideration between parties, fraudulent presentation, etc.
Example: Assume you agreed to sell and the other party agreed to buy three acres of land
that you thought you owned. Later, it turns out that you did not have title to the property.
Therefore under rescission remedy, there would be no legal contract.
Delaware and Mississippi are the examples of the states in which both courts of law and
courts of equity exist. In both states, the courts of equity are called the Court of Chancery. This
court deals with limited cases. In Mississippi, the Chancery court works with the disputes
involving equity: adoptions, custody disputes, and guardianships14. In Delaware, the Chancery
court hears cases involving general equity such as internal corporate disputes, trust and estate,
commercial and contractual matter15. Due to its role to the dispute between corporations, the
Court of Chancery Delaware has a big impact on the corporations in the state. Most large
corporations are incorporated in Delaware so the Delaware Chancery Court hears a lot of cases
that involve disputes related to corporations.
Most states have merged the courts of law and courts
of equity. However, these courts still follow the procedures of
equity for equitable remedies. For example, injunctions are
Quick review: Statutory interpretation
decided by the judge and not with a jury.
is the process of interpreting and applying
VII. Statutory Interpretation
the legislation to the court cases. Judges
determine which technique would be used
in statutory review.
Statutory interpretation is the process of interpreting
and applying legislation. Since the language in statutes is often ambiguous, interpretation
becomes necessary to clarify the intent and understand its bearing on court cases. Judges
interpret the statue. There are different techniques used by the judge for statutory interpretation.
However, there are no rules about which techniques should be used. The process and technique
are implemented by the judges. Some of the traditional techniques we will discuss further are
plain meaning, legislative history, prior interpretation (precedent), and maxims.
Plain meaning rule is used when the statute’s words are not ambiguous, but clear and
easy to understand. In other words, when the statute uses the ordinary English language, plain
meaning rule would be used as a technique.
14
15
http://www.mssc.state.ms.us/aboutcourts/aboutcourts.html
http://courts.delaware.gov/Courts/Court%20of%20Chancery/?jurisdiction.htm
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Legislative history is another technique used by the judge in statutory interpretation. A
Judge can refer to legislative history to provide context and background when the statute’s
language is unclear.
Prior interpretation (precedent) is used when the court refers to the prior cases and
decisions. This proves the consistency of the court. With the cases having similar situations and
arguments, the judges should derive similar results.
Maxims are rules of thumb used in statutory interpretation. Some of the examples are:
"When the reason of a rule ceases, so should the rule itself"
"He who consents to an act is not wronged by it"
"No one can take advantage of his own wrong"
"No one should suffer by the act of another"
"He who takes the benefit must bear the burden" 16
VIII. Limits on power of courts
There are some constraints which affect the approach leading to the decisions of the
cases. These constraints take away some of the power of the court and also make sure judges do
not abuse or misuse their authority.
Statutory law impacts the power of courts. Since statutory law derives from the acts of
legislatures and is written, instead of oral, the law as we explained earlier is used to interpret and
cite in court.17 Statutory law is both the interpretation which the court needs to follow and also
limits the judges by creating guidelines.
Judges are not only required to follow and accept statutory law; they also operate under
ethical obligations from their legal training and mental makeup. Their background and training
establishes a strong foundation for their understanding of the law and the respect for the
procedure of the court. Also, judges work under pressure from the public. Many courts issue
written opinions which are published and could reveal their “poor job” if the judges do not
follow the correct procedures or violate their professional ethical codes. For lower court judges,
the pressure from higher courts also influences their actions and decisions. They can be
overruled by judges on higher level courts as the case is appealed. Moreover, political issues
limits the power of courts. The President and Congress appoint and confirm appointments of
judges. Even judges with lifetime tenure can be removed by impeachment for egregious breeches
16
http://legal-dictionary.thefreedictionary.com/maxims
17
http://www2.lib.udel.edu/subj/godc/resguide/statutor.htm
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of duty. Congress can also vote to modify the law to limit the power of the courts, and or restrict
the jurisdiction of the courts 18 . Therefore, the courts work under checks and balances from
President and Congress, which limits the power of the court and may influence the court’s
decision on cases.
“Advisory opinions are court statements issued in the absence of a case or controversy”.
Advisory opinions are often issued by courts in other nations in order to provide legal advice to
the executive or legislative branch; however no court in the United States will issue advisory
opinions because without a real controversy there are no real fact upon which to base a decision
which undermines the influence and power of the decision19.
Example: If congress wanted to pass a law making it illegal to burn the
American flag and wanted to know if, in the Supreme Court’s opinion, such a
law violated freedom of speech protected in the 1st Amendment the Supreme
Court could not issue an opinion that would answer such questions until an
individual was arrested for burning a flag and appealed the case all the way
through the court system to the Supreme Court.
Like advisory opinions, feigned controversies cannot be decided by courts in the United States.
A feigned controversy is when a party or individual ‘fakes’ a problem and case in order to solicit
a court opinion.
US courts will also refuse to issue an opinion if they find that the plaintiff lacks standing to sue.
In order to have standing, the plaintiff must be able to demonstrate having suffered a loss or
damage and have some direct stake in the outcome of the litigation.
Declaratory judgments are typically requested by a party when threatened with a
lawsuit which is not yet filed. Declaratory Judgments are also requested when one party believes
that their rights under law and or contract might be violated. In either case, they are intended to
provide clarification for the relevant parties by declaring the rights, duties, or obligations of each
party in a dispute without having to go through a full civil trial. Once made the judgment is
binding as to the duties, rights, obligations and status of the involved parties, however, a
declaratory judgment does not order any action or result in any award of damages or remedies to
any party to the case.20
18
http://www.beyondbooks.com/gov91/9e.asp
19
http://legal-dictionary.thefreedictionary.com/advisory+opinions
20
http://legal-dictionary.thefreedictionary.com/Declaratory+Judgment
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Famous American Trials: The Boston Massacre Trials – Alison Kleiner
The trial of the eight soldiers and their captain involved in the Boston Massacre was a
highly publicized and talked about event in 1770. The lawyer John Adams (later to become the
chief proponent for independence, and later to become Washington’s Vice President and then to
become the second president) defended the accused. By doing so John Adams faced criticism
and put his career on the line to do what he felt was his moral duty. He thought that all
defendants deserved a lawyer to help themselves. (That right was later put in the Sixth
Amendment to the Constitution.
The soldiers were tried separately from the captain, much to the dismay of the soldiers,
who feared that their captain would use the defense that he never gave the soldiers the order to
fire. However, the first trial was of the captain, Captain Thomas Preston. John Adams lead the
defense with the assistance of Josiah Quincy and Samuel Quincy and Robert Paine headed up the
prosecution. The main issue of the trial was whether or not Preston gave the crucial order to fire
on the civilians.
The prosecution brought forth four witnesses that claimed, under oath, to have heard
Captain Preston give the order to fire. However, John Adams produced three counter witnesses
that stated, under oath, to have never heard Preston give such orders. Captain Preston’s
testimony also helped the defense in creating doubt in the jurors’ minds. Enough doubt was
created that after little deliberation Captain Preston was acquitted on all charges.
Eight weeks later the soldiers faced their trial. The prosecution brought forth many
witnesses claiming the soldiers shot the civilians. A testimony by Samuel Hemmingway claimed
that a specific soldier, Private Matthew Killroy, shot and killed the citizen John Gray. The
defense used witnesses to support that the soldiers fired only in self defense. The most crucial
defense testimony was that of a surgeon who had spoken with a victim of the shooting just
before he died. The surgeon claimed that the victim said he has never seen soldiers endure so
much from a mob before firing in self defense. He also stated that the victim said he had no
malice or ill-will towards the soldier that shot him, the soldier was simply protecting himself.
The defense presented almost forty witnesses to support their case of self-defense.
The prosecution summed up by talking about the importance of justice and by stating that
the dying witness was not under oath when he talked, therefore he should not be fully trusted.
John Adams summarized the defense by reinforcing the idea of self-defense and the importance
of protecting one’s self.
After less than three hours of deliberation the jury acquitted six of the eight soldiers. The
two that were not acquitted were Private Matthew Killroy and Private Hugh Montgomery. They
were not acquitted because it was proved that they actually fired their guns, and they were found
guilty of manslaughter.
When Killroy and Montgomery came back into court for their sentencing, they invoked
“the benefit of the clergy”. This plea shifted their punishment from imprisonment to the branding
of their thumbs. The two men’s right thumbs were branded. This lessened sentence brought
about much controversy in the following weeks.
However, John Adams when later in his life was asked about the trial he states “It was,
however, one of the most gallant, generous, manly and disinterested actions of my whole life.”
John Adams career as a lawyer was highlighted by this case, and from this case he went on to a
grand career that leads him to becoming the second President of the United States of America.
Chapter 1a: Introduction to Law
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Chapter 1a: Introduction to Law
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