Outline Paper Title: the Common Law Tradition and Sources of Law Essay
Outline Paper Title: the Common Law Tradition and Sources of Law
I. THESIS STATEMENT:
A. Common law is a legal system that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials. The reasoning used to interpret this type of law is known as casuistry, or case-based reasoning. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Decisions that were made about similar cases are valuable, and the case in question is evaluated on the basis of past cases. The strength of the similarity among the cases, in turn, strengthens the reasoning based on them. B. The term “common law” also underlines the fact that this type of law did not originate from equity, maritime and other special branches of law. Statutes serve as brief explanations of law and therefore are not very explanatory.
Codification is the process by which a statue is passed, expressed within a single document, so that it is understood within existing law rather than creating the need for new laws. C. The common-law system prevails in England, the United States, and other countries colonized by England. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king’s courts represented the common custom of the people.
II. WHAT IS COMMON LAW?
A. Common Law is the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
III. WHAT ARE THE SOURCES OF AMERICAN LAW?
A. The United States Constitution and the constitutions of the various states B. Statutory Law – including laws passed by Congress, state legislatures, and local governing bodies. C. Regulations created by administrative agencies (such as the United States Food and Drug Administration). D. Case law and common law doctrines.
E. Secondary sources of law are books and articles that summarize and clarify the primary sources of law (i.e., legal encyclopedias, treatises, and articles in law reviews).
Several SourcesConstitutional, statutory, and case law—these are your tools. The United StatesConstitution is the overriding document. It is the Supreme Law of the Land. Eachstate has its own constitution. State and federal statutes are interpreted by judgesthrough case law. These sources play in each practice area. For example,constitutional law governs searches and seizures in a criminal matter. Statutesprovide the framework for real estate transactions, and case law interprets andapplies both constitutional and statutory law. There is much to learn.|
A. The Federal Constitution
i. The United States Constitution, as amended, is the supreme law of the land. ii. A law in violation of the United States Constitution will be declared unconstitutional and will not be enforced. iii. The United States Constitution sets forth the powers of the three branches of the federal government and the relationship between the three branches. iv. Constitutional Rights
1. The first ten amendments to the United States Constitution are commonly known as the Bill of Rights. v. The Courts and Constitutional Law
1. The broad principles enunciated in the Constitution are given form and substance by the courts.
2. Courts Balance the Right to Free Speech
a. Even though the First Amendment guarantees the right to free speech, the Supreme Court has made it clear that certain types of speech will not be protected.
3. Free Speech and the Internet
a. The Internet has raised new problems for the courts in determining how to define and apply the protections of free speech.
B. State Constitutions
i. Each state also has a constitution that sets forth the general organization, powers, and limits of the state government. ii. A state constitution is supreme within the state’s respective borders, so long as it does not conflict with the United States Constitution. C. Constitutional Law and the Paralegal
i. Paralegals often assist attorneys in handling cases that involve constitutional rights or provisions. ii. Knowledge of constitutional law is beneficial because the authority and underlying rationale for the substantive and procedural laws governing many areas of law are found in the Constitution.
V. STATUTORY LAW
A. Statutes are the laws enacted by legislative bodies at any level of government.
B. Federal Statutes.
i. Federal statutes are enacted by the United States Congress and apply to every state. ii. Any federal statute that violates the United States Constitution will be held unconstitutional.
C. State and Local Statutes and Ordinances
i. State statutes are laws enacted by state legislatures. ii. Any state law that is found to conflict with the United State Constitution, or with that state’s constitution, will be deemed unconstitutional.
D. Uniform Laws
i. Uniform (“model”) statutes are drafted for adoption by the states. ii. A state can adopt or reject all or part of a uniform law, as the state legislature wishes. iii. An example of a uniform law is the Uniform Commercial Code (UCC).
E. The Expanding Scope of Statutory Law
i. Legislative bodies and administrative agencies assume an ever-increasing share of lawmaking.
F. Statutory Law and the Paralegal
i. A paralegal may often assist in cases involving violations of statutory law. ii. A paralegal working on cases governed by statutory law needs to know how to both locate and interpret the relevant state or federal statutes.
VI. ADMINISTRATIVE LAW
A. Agency Creation and Function
i. Administrative agencies are created by legislatures to administer and enforce legislation and to issue rules to implement the goals of specific legislation. ii. Examples of federal administrative agencies are:
1. Environmental Protection Agency
2. Occupational Safety and Health Administration
3. Food and Drug Administration.
A. Administrative Law and the Paralegal
i. Paralegals frequently deal with administrative agencies. 1. Paralegals may also work for administrative agencies, drafting new rules, mediating disputes, and numerous other tasks. Consulting CasesCase law represents judicial opinions. Judicial opinions represent opinions written by judgeson a particular case. Understanding case law can be difficult. It requires analytical skills. Suchskills are acquired over time and after reading many cases. But do not despair. When you findthat perfect case, it will be worth it.|
VII. CASE LAW AND THE COMMON LAW TRADITION
A. The Origins and Nature of the Common Law
i. Common law originated in medieval England with the creation of the king’s court. ii. Courts developed the common law rules from the principles underlying judges’ decisions in actual legal controversies. iii. Judges attempted to be consistent. When possible, they based their decisions on the principles suggested by earlier cases. iv. The practice of deciding new cases with reference to former decisions, or precedents, is a cornerstone of the American judicial system. v. Stare decisis means “to stand on decided cases.”
vi. Under this doctrine, judges are expected to abide by the law as established by previous court decisions. vii. Sometimes a court will depart from precedent if it decides the precedent should no longer be followed.
VIII. WHAT IS THE IMPORTANCE OF PRECEDENT TO THE JUDICIAL DECISION-MAKING PROCESS?
A. The judicial process is informative, thought-provoking and often insightful, albeit verbose. It is also timely given the intense political nature of current federal judicial confirmation proceedings.
Under the doctrine of stare decisis, once a court has set forth a principle of law as being applicable to a certain set of facts, that court and courts of lower rank must adhere to that principle and apply it in future cases involving similar fact patterns. Stare decisis have two aspects: first, decisions made by a higher court are binding on lower courts; and second, a court should not overturn its own precedents unless there is a strong reason to do so.
IX. WHAT ARE EQUITABLE AND LEGAL REMEDIES?
A. Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VII to provide more flexible responses to changing social conditions than was possible in precedent-based common law.
Subject: Common law,
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 3 October 2016
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