PART I – THE LEGAL ENVIRONMENT
CHAPTER 1 – THE NATURE OF LAW AND CRITICAL LEGAL THINKING
A.
Chapter Introduction
Chapter 1 discusses the nature of the law and introduces the paralegal to the process of
critical legal thinking as applied by the U.S. Supreme Court in deciding an actual case.
After completion of this chapter, students should be able to:
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B.
Define law and describe the functions of law.
Describe the flexibility of the law and its applications to modern e-commerce.
List and describe the schools of jurisprudential thought.
Explain the development of the U.S. legal system.
Explain how English common law was adopted in the United States.
List and describe the sources of law in the United States.
Define the doctrine of stare decisis.
Describe the international civil law legal system used in some other countries.
Describe the development of e-commerce and Internet law.
Apply critical legal thinking in analyzing judicial decisions.
Instructional Ideas
1. Ask the students to explain what John Locke meant when he wrote, “Where
there is no law, there is no freedom.” Could it be that the law liberates
people, even though it restricts their activities and regulates their lives?
2. Ask the students what they like most and least about the legal system as it
presently exists.
3. Discuss the Brown v. Board of Education case as an example of how the
common law system works and evolves over time.
4. Discuss the different schools of jurisprudential thought, focusing on the
strong and weak parts of each theory.
5. Explain the sources of law in the American legal system and how the federal
judiciary’s power of judicial review provides the ultimate trump card in the
separation of powers doctrine.
6. Explain how to brief a case, focusing on what makes for key facts in a brief
and how one determines what the issue of a case is.
C.
Video Recommendation(s)
Historian Simon Schama’s BBC documentary, “The History of Britain” is an excellent
video/DVD. The series is hours long, but in it, there is a fascinating account of the birth
of English common law around the 12th century. That portion might take about 15-25
minutes to show.
Henry Fonda’s Gideon’s Trumpet, is a theatrical account of the case, Gideon v.
Wainwright, wherein the U.S. Supreme Court decided that the right to provided counsel
for indigent was a constitutional right that should be extended to the states. Although it
isn’t a thriller, the movie does a nice job showing how the appellate process works.
D.
Chapter Outline
I.
What is Law?
A. Definition: A body of rules of action or conduct prescribed by
controlling authority and having binding legal force.
B. Functions: 1) keep the peace; 2) shape moral standards; 3) promote
social justice; 4) maintain the status quo; 5) facilitate orderly change;
6) facilitate planning; 7) provide a basis for compromise; 8) maximize
individual freedom
C. Fairness: Although the American legal system is one of the fairest
and most democratic systems of law, abuses and mistakes in the
application of the law still occur.
D. Flexibility: The law must be flexible to meet social, technological,
and economic changes.
II.
Schools of Jurisrpudential Thought
A. Natural Law: Postulates that law is based on what is “correct”;
emphasizes a moral theory of law—that is, law should be based on
morality and ethics.
B. Historical: Believes that law is an aggregate of social traditions and
customs.
C. Analytical: Maintains that law is shaped by logic.
D. Sociological: Asserts that the law is a means of achieving and
advancing certain sociological goals.
E. Command: Believes that the law is a set of rules developed,
communicated, and enforced by the ruling party.
F. Critical Legal Studies: Maintains that legal rules are unnecessary
and that legal disputes should be solved by applying arbitrary rules
based on fairness.
G. Law and Economics: Believes that promoting market efficiency
should be the central concern of legal decision making.
III.
History of American Law
A. Foundations of American Law: English common law (judge-made
law) forms the basis of the legal systems of most states in this country.
Louisiana bases its law on the French civil code.
IV.
Sources of Law in the United States
A. Constitutions: The U.S. Constitution establishes the federal
government and enumerates its powers. Powers not given to the
federal government are reserved to the states. State constitutions
establish state governments and enumerate their powers.
B. Treaties: The President, with the advice and consent of the Senate,
may enter into treaties with foreign countries.
C. Codified Law: 1. Statutes are enacted by Congress and state
legislatures. 2. Ordinances and statues are passed by municipalities
and local government bodies to establish courses of conduct that
must be followed by covered parties.
D. Administrative Agency Rules and Regulations: Administrative
agencies are created by the legislative and executive branches of
government; they may adopt rules and regulations that govern the
conduct of covered parties.
E. Executive Orders: Issued by the President and governors of states;
executive orders regulate the conduct of covered parties.
F. Judicial Decisions: Courts decide controversies by issuing decisions
that state the holding of each case and the rationale the court used to
reach that decision.
V.
Doctrine of Stare Decisis
A. Definition: Means “to stand by the decision;” doctrine that provides
for adherence to precedent.
E.
Critical Legal Thinking Questions
1. What is law? Give a definition of law.
Law consists of the rules that regulate the conduct of individuals, businesses,
and other organizations within society. Black’s Law Dictionary defines law
as “… a body of rules of action or conduct prescribed by controlling authority,
and having binding legal force. That which must be obeyed and followed by
citizens subject to sanctions or legal consequences is a law.”
2. What are the main functions of the law? Do you think that the law
accomplishes these functions?
The primary functions of law are to keep the peace, shape moral standards,
promote social justice, maintain the status quo, facilitate orderly change and
planning, provide a basis for compromise, and maximize individual freedom.
Whether the law accomplishes these functions is an opinion and a
consequence of one’s experiences and ideology.
3. Is the law fair? Can it be?
Yes, on the whole the law—meaning the American legal system—is fair and
comprehensive. That does not mean that all of the law or the legal system is
fair. The law and its corresponding legal system can only be as fair as its
legislatures and courts are fair in creating and interpreting the law.
4. Should the law be flexible? Why or why not?
Yes, the law should be flexible and evolve as the norms of society,
technology, and commerce change and expand. If the law was immutable,
then many legal wrongs could never be righted, as evidenced by the change
made by the U.S. Supreme Court in Brown v. Board of Education in 1954.
5. What is the common law? How did it develop?
Common law, originally known as English common law, is judge-made law.
It involves judges deciding present legal disputes based on prior legal
decisions, or precedent. Common law developed out of England and its
system of law, which came to the colonies and has been part of the American
legal system ever since.
6. What is the civil law? How did it develop?
Civil law comes from the Romano-Germanic civil law system, which is a
code-based system of law, as opposed to the common law. The civil law
system developed from the Roman Corpus Juris Civilis and later from the
Napoleonic Code and the German Civil Code of 1896.
7. Describe the different functions of the legislative, executive, and judicial
branches of the government.
The legislative branch of government is empowered to make, or enact, law
(legislation). The executive branch of government is empowered to enforce
the law. The judicial branch of government is empowered to interpret and
determine the validity of law.
8. What is codified law?
Codified law is statutory law, written laws established by legislatures, such as
the U.S. Congress, for instance. Codified law is organized by topics when
placed in statutory codes.
9 Define the doctrine of stare decisis. What public policy does it serve?
Stare decisis is Latin for, “to stand by the decision.” This doctrine is the basis
of the common law system, whereby courts rely upon earlier appellate
decisions as precedent for resolving present legal disputes. This doctrine
promotes uniformity of law within a jurisdiction, makes the court system
more efficient, and makes the law more predictable for individuals and
businesses.
10. Describe feminist legal theory.
Feminist legal theory, or feminist jurisprudence, advances the position that the
female perspective should be taken into account when legislators and judges
develop, interpret, and apply the law.
F.
Cases for Discussion
Kyllo v. United States, 121 S.Ct. 2038 (2001), concerns whether the use of a thermalimaging device aimed from a public street at the home of one suspected of growing
marijuana inside constitutes an unreasonable search, in violation of the Fourth
Amendment. Police used a thermal-imaging device to determine whether Kyllo’s home
was “hot,” which would indicate he was using halide lights to grow marijuana. Justice
Scalia concluded that using such a device violated the Fourth Amendment, because this
went beyond a visual observation, which is not a search. Using technology to obtain
what the naked eye could not observe, or what could not be obtained without physical
intrusion, violates the Constitution.
QUESTIONS
1.
Is the Fourth Amendment’s prohibition against unreasonable search and seizures
an easy standard to apply? Explain.
Considering the Fourth Amendment is now centuries old, and that many cases
from the U.S. Supreme Court have interpreted the Fourth Amendment, one could
conclude that the application of the prohibition against unreasonable search and
seizures is difficult. Technological changes alone have changed our view of what
constitutes a search, as evidenced by this case. Furthermore, a judge’s view on
the proper role of constitutional interpretation (judicial philosophy), as well as
balancing the rights of the citizens to be left alone with law enforcement’s interest
in fighting crime, all add up to create quite a legal stew.
2.
Did the police act ethically in obtaining the evidence in this case?
This is an opinion question, with reasonable positions to take on both sides. Did
Kyllo act ethically in trying to suppress the evidence? As a defendant in a
criminal case, Kyllo has the right to use every method allowable to secure an
acquittal or an appellate victory. Arguing that his Fourth Amendment rights were
violated was a normal response in such a case. However, he did break the law by
growing marijuana, and one could argue that he got away with it because of a
“technicality.”
3.
How can the government catch entrepreneurs such as Kyllo? Explain.
The police could engage in a sting operation and attempt to buy marijuana from
him, or they could obtain a search warrant, assuming they could convince a judge
of the need for one.
W.C. Ritchie & Co. v. Wayman, 91 N.E. 695 (Ill. 1910), concerns the constitutionality of
a statute that limited the workday of women working in manufacturing jobs to no more
than 10 hours per day. Although it was alleged that the statute violated the Equal
Protection Clause, the Illinois Supreme Court upheld the statute on the grounds that such
a gender-specific statute was lawful in light of the physical differences between men and
women and the belief that women couldn’t work longer than 10 hours per day on their
feet without impairing their health and their ability to perform their “maternal functions.”
QUESTIONS: (the following questions are excellent discussion/opinion questions)
Is the statute fair? It is discriminatory, but could be thought to be unfair to both men
(who aren’t as protected by the legislature) and women (who might not want to be
protected). Fairness might be a little too idyllic for the legal system.
Would the statute be lawful today? It is unlikely that it would be lawful today, in light of
the evolution of the interpretation of the Equal Protection Clause. However, women still
are not subject to registering for the draft, which so far has not been found to be an equal
protection violation.
Should the law be a “progressive science”? This presumes the law is scientific. If
anything, the law is more art than science, and it has been progressive since the birth of
the common law to the extent that the common law (and statutes for that matter) is
always changing.
G.
Ethics Case
Rostker, Director of the Selective Service v. Goldberg, 453 U.S. 57 (1981) concerns the
constitutionality of the male-only draft registration law. Subject to a challenge by several
men, arguing the law violated the Equal Protection Clause, the U.S. Supreme Court
upheld the constitutionality of the law. Finding that the law was not the accidental byproduct of a traditional way of thinking about women, the majority concluded that men
and women are simply not similarly situated for purposes of a draft or registration for a
draft.
QUESTIONS: (the following questions are excellent discussion/opinion questions)
Was the decision fair? Its outcome has no effect on whether men can avoid draft
registration and doesn’t prevent women from volunteering for the armed forces. So, in a
way, it isn’t unfair. But, those men who argue women should have to do what men have
to do would conclude the decision was unfair.
Has the law been a “progressive science” in this case? “Progressive” is a buzz word, so
whether one thinks this case demonstrates lack of progress would be great to learn in
class discussion.
Is it ethical for males, but not females, to have to register for the draft? This is another
opinion case, which might cause some students to wonder what ethics has to do with
registering for the draft.