BLAW 3201 Exam 1

Definition of Law

"a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong" (William Blackstone)

What is the relationship between rights and duties under the law?

A right is the capacity of a person, with the aid of the law, to require another person(s) to perform, or refrain from performing, a certain act. A duty is an obligation the law imposes upon a person to perform, or to refrain from performing, a certain act. Duty and right are correlatives; no right can rest upon one person without a corresponding duty resting upon some other person or, in some cases, upon all other persons.

Civil Law System vs. Civil Law

Civil law systems depend on comprehensive legislative enactments called codes and the inquisitorial method of adjudication. The "civil law" defines duties the violation of which constitutes a wrong against the party injured by the violation.

Reports

Decisions of State courts of appeals are published in consecutively numbered volumes.

Substantive Law

Defines rights and duties and is concerned with all rules of conduct except those involved in enforcement.

Ryan v. Friesenhahn

Drinking case. Viewed as negligence per se because a minor. A violation of the statute constitutes negligence per se if the the other members are protected by the statute

Decision in the Ryan v. Friesenhahn Case

In favor of the Ryans. Summary judgment reversed and case remanded to the trial court

any act or omission prohibited by the government and made punishable in a judicial proceeding brought by the government.

In the common law system of the United States, a crime is defined as: a. a private wrong that necessitates litigation between the victim and the perpetrator. b. any act or omission prohibited by the government and made punishable in a judicial proceeding brought by the government. c. litigation where the injured party sues to recover compensation for the damages and injury sustained as a result of the defendant's wrongful conduct. d. interstate compacts and the rules and regulations of federal and state agencies.

Civil Action

In this type of action the injured party sues to recover compensation for the damage and injury he has sustained as a result of the defendant's wrongful conduct.

Judicial Review

Power of the courts to determine the constitutionality of legislative and executive acts.

Adversary System

System in which opposing parties initiate and present their cases.

Plaintiff

The party who initiates a civil suit.

What is the function of law? Some observers claim we have too much law today. What accounts for the increased number of laws that exist today?

The primary function of law is to maintain stability while simultaneously permitting change. Other functions are protection of property, dispute resolution, facilitation of voluntary agreements, and preservation of the state. Many factors and opinions can be cited by students. In general, the complexity of today's society accounts for the increase in law, especially the statutory and administrative law.

Civil Law

The principal forms of relief this law provides are a judgment for money damages and a decree ordering the defendant to perform a specified act or to desist from specified conduct.

Civil Law

The purpose is to compensate the injured party.

Criminal Law

The purpose is to punish the wrongdoer

Substantive Law

Thus, the rules of contract law that determine when a binding contract is formed are rules of

Sues

To begin a lawsuit in a court.

Sanctions

Without these laws would be ineffectual and unenforceable.

Civil Law

defines duties the violation of which constitutes a wrong against the party injured by the violation. The purpose is to compensate the injured party. Must be proven preponderance of the evidence

Procedural Law

defines the method by which one may obtain a remedy in court.

Private Law

is that part of substantive law governing individuals and legal entities (such as corporations) in their relations with one another.

Public Law

is the branch of substantive law that deals with the government's rights and powers in its political or sovereign capacity and in its relation to individuals or groups.

Substantive Law

law creating rights and duties

Civil Law

law dealing with rights and duties the violation of which constitutes a wrong against an individual or other legal entity

Public Law

law dealing with the relationship between government and individuals

Constitution

provides that Federal statutes and treaties shall be the supreme law of the land.

Law and Morals

the part of the legal circle that does not intersect the morality circle includes many rules of law that are completely unrelated to morals, such as the rules stating that you must drive on the right side of the road and that you must register before you can vote. Likewise, the portion of the morality circle which does not intersect the legal circle includes moral precepts not enforced by law, such as the moral principle that you should not silently stand by and watch a blind man walk off a cliff or that you should provide food to a starving child.

Functions of Law

to maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change

Reasons in the Ryan v. Friesenhahn Case

1. Accepting the Ryans' allegations as true, the Friesenhahns were aware that minors possessed and consumed alcohol on their property and specifically allowed Sabrina to become intoxicated. The Texas Alcoholic Beverage Code provides that a person commits an offense if, with criminal negligence, he "makes available and alcoholic beverage to a minor." A violation of a statute constitutes negligence per se if the injured party is a member of the class protected by the statute. Since the Alcoholic Beverage Code was designed to protect the general public and minors in particular, Sabrina is a member of the class protected by the Code. Therefore, we find that the Ryans stated a cause of action against the Friesenhahns for the violation of the Alcoholic Beverage Code. In considering common-law negligence as a basis for social host liability, the Texas Supreme Court has held that there are two practical reasons for not imposing a third-party duty on social hosts who provide alcohol to adult guests: first, the host cannot reasonably know the extent of his guests' alcohol consumption level; second, the host cannot reasonably be expected to control his guests' conduct. However, this rational does not apply where the guest is a minor. The adult social host need not estimate the extent of a minor's alcohol consumption because serving minors any amount of alcohol is a criminal offense. Furthermore, the social host may control the minor, with whom there is a special relationship, analogous to that a parent-child.

All of the above.

A constitution: a. restricts the powers of government. b. specifically enumerates certain liberties of the people. c. establishes governmental structure. d. All of the above.

Criminal Law

Additional purposes include deterrence and rehabilitation.

ok

All other law in the United States is subordinate to the Federal Constitution. No law, Federal or State, is valid if it violates the Federal Constitution. Under the principle of judicial review, the Supreme Court of the United States determines the constitutionality of all laws. (Answer=ok)

Law and Morals

Although moral and ethical concepts greatly influence the law, morals and law are not the same. They may be considered as two intersecting circles. The area common to both circles includes the vast body of ideas that are both moral and legal. For instance, "Thou shall not kill" and "Thou shall not steal" are both moral precepts and legal constraints.

Oliver Wendell Holmes and Benjamin Cardozo

American jurists ____ and ____ defined law in a functional sense as predictions of the way that a court will decide specific legal questions. a. Roscoe Pound and Alexander Hamilton b. Blackstone and Austin c. Roscoe Pound and Benjamin Cardozo d. Oliver Wendell Holmes and Benjamin Cardozo

Sanctions

An example in a civil (noncriminal) case is the seizure and sale of the property of a debtor who fails to pay a court-ordered obligation, called a judgment. Moreover, under certain circumstances, a court may enforce its order by finding an offender in contempt and sentencing him to jail until he obeys the court's order. In criminal cases, the principal sanctions are the imposition of a fine, imprisonment, and capital punishment.

Common Law System

Body of law originating in England and derived from judicial decisions. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the judgments and decrees of the courts recognizing, affirming, and enforcing usages and customs of immemorial antiquity.

Duty and Right

Duty and right are correlatives: no right can rest upon one person without a corresponding duty resting upon some other person or, in some cases, upon all other persons.

You have just been asked to serve as a host for a visitor from France who is very interested in the American legal system and the formation of law in the United States. How would you explain the nature of the legal system in this country to your guest?

France has a civil law system, which is based upon the Napoleonic Code, whereas the U.S. has a common law system, which is based on the English common law. The answer should compare the common law system of the U.S. to the civil law system as described in the text. For example, the answer should explain that the U.S. legal system relies heavily on the judiciary as a source of law and on the adversary system for the adjudication of disputes.

Constitution

Fundamental law of a government establishing its powers and limitations.

Preponderance

Greater weight of the evidence; standard used in civil cases.

Preservation of the State

In our system, law ensures that changes in leadership and the political structure are brought about by political actions such as elections, legislation, and referenda, rather than by revolution, sedition, and rebellion.

Issue in the Ryan v. Friesenhahn Case

Is a social host who serves alcoholic beverages to a minor liable in negligence for harm suffered by the minor as a result of the minor's intoxication?

Law and Justice

Law and justice represent separate and distinct concepts. Without law, however, there can be no justice. Although justice has at least as many definitions as law does, justice may be defined as fair, equitable, and impartial treatment of the competing interests and desires of individuals and groups with due regard for the common good.

Right

Legal capacity to require another person to perform or refrain from performing an act.

Duty

Legal obligation requiring a person to perform or refrain from performing an act.

Hearings before the Senate

Sources of federal law include all but which of the following? a. Rules of administrative agencies b. Decisions of federal courts c. Executive orders of the President of the United States d. Hearings before the Senate

Substantive Law

The basic law of rights and duties (contract law, criminal law, tort law, law of wills, etc.), as opposed to procedural law (law of pleading, law of evidence, law of jurisdiction, etc.).

ok

The party bringing a civil action (the plaintiff) has the burden of proof, which he must sustain by a preponderance (greater weight) of the evidence. (Answer=ok)

Protection of Property

The recognition of private ownership of property is fundamental to our economic system, based as it is upon the exchange of goods and services among privately held units of consumption. Therefore, a second crucial function of law is to protect the owner's use of property and to facilitate voluntary agreements (called contracts) regarding exchanges of property and services. Accordingly, a significant portion of law, as well as this text, involves property and its disposition, including the law of property, contracts, sales, commercial paper, and business associations.

Sources of Law

The same pattern exists in every State. The paramount law of each State is contained in its written constitution. (Although a State constitution cannot deprive citizens of Federal constitutional rights, it can guarantee rights beyond those provided in the U.S. Constitution.) State constitutions tend to be more specific than the U.S. Constitution and, generally, have been amended more frequently. Subordinate to the State constitution are the statutes that the State's legislature enacts and the case law that its judiciary develops. Likewise, State administrative agencies issue rules and regulations having the force of law, as do executive orders promulgated by the governors of most States. In addition, cities, towns, and villages have limited legislative powers within their respective municipal areas to pass ordinances and resolutions.

Sources of Law

The supreme law of the land is the U.S. Constitution. The Constitution provides that Federal statutes and treaties shall be the supreme law of the land. Federal legislation and treaties are, therefore, paramount to State constitutions and statutes. Federal legislation is of great significance as a source of law. Other Federal actions having the force of law are executive orders of the President and rules and regulations of Federal administrative officials, agencies, and commissions. The Federal courts also contribute considerably to the body of law in the United States.

Beyond a Reasonable Doubt

To bring a criminal proceeding.

Prosecuted

To bring a criminal proceeding.

Ryan v. Friesenhahn

Todd threw a party and Sabrina attended. The party was BYOB and after Sabrina left, she was killed in a car wreck because she was drunk. They Ryans sue the Frie's for negligence. Frie's were aware of the underage drinking and knew of Sabrina's condition when she left.

False

True or False: A private citizen may bring a criminal action against an individual for breaking a criminal law.

False

True or False: Societies that have law are guaranteed justice.

True

True or False: The law can be defined as predictions of the way in which a court will decide specific legal questions.

False

True or False: The law is the same as moral and ethical concepts.

False

True or False: The only purpose of law is to define what conduct constitutes a crime.

False

True or False: The principle of stare decisis precludes courts from changing any decisions they previously announced.

False

True or False: Under the civil law system, adversaries initiate and conduct litigation.

False

True or False: Usual remedies granted in a criminal case include compensation for the victim.

True

True or False: You find a decision of the U.S. Court of Appeals in the Federal Reporter.

Proof of guilt must be "by preponderance of the evidence."

Which one of the following is NOT true of a suit brought under criminal law? a. It must be brought by the government. b. It is brought on the ground of public policy. c. Proof of guilt must be "by preponderance of the evidence." d. Conviction may result in imprisonment.

Friesenhahn's

Who is the Defendant in the Ryan v. Friesenhahn Case?

Ryan's

Who is the Plantiff in the Ryan v. Friesenhahn Case?

Government

Who must prove criminal guilt beyond a reasonable doubt, which is a significantly higher burden of proof than that required in a civil action?

Treaties

agreements between or among independent nations

Constitution

also restricts the powers of government and specifies the rights and liberties of the people. For example, it not only specifically states what rights and authority are vested in the national government but also specifically enumerates certain rights and liberties of the people. Moreover, the Ninth Amendment makes it clear that this enumeration of rights does not in any way deny or limit other rights that the people retain.

Law and Morals

are different but overlapping; law provides sanctions, while morals do not

Legal Sanctions

are means by which the law enforces the decisions of the courts

Law and Justice

are separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good

Equity Law (Judicial Law)

body of law based upon principles distinct from common law and providing remedies not available at law

Administrative Law

body of law created by administrative agencies to carry out their regulatory powers and duties

Common Law (Judicial Law)

body of law developed by the courts that serves as precedent for determination of later controversies

Civil Law

concerned with civil or private rights and remedies, as contrasted with criminal laws. The system of jurisprudence administered in the Roman empire, particularly as set forth in the compilation of Justinian and his successors, as distinguished from the common law of England and the canon law. This type of law is followed by Louisiana.

Public Law

consists of constitutional, administrative, and criminal law

Ryan v. Friesenhahn

court- court of appeals of Texas issue- is a social host who serves alcohol to a minor liable in negligence for harm suffered by the minor? decision- in favor of the Ryans (drunk driver) reasons- negligent tort, criminal offense

Criminal Law

establishes duties the violation of which is a wrong against the whole community

Constitutional Law

fundamental law of a government establishing its powers and limitations

Law

general command that a state or sovereign makes to those who are subject to its authority by laying down a course of action enforced by judicial or administrative tribunals.

Sources of Law

in the U.S. legal system they are the Federal and State constitutions, Federal treaties, interstate compacts, Federal and State statutes and executive orders, the ordinances of countless local municipal governments, the rules and regulations of Federal and State administrative agencies, and an ever-increasing volume of reported Federal and State court decisions.

Civil Law

is a part of private law

Criminal Law

is a part of public law.

Crime

is any act or omission that public prohibits in the interest of protecting the public and that the government makes punishable in a judicial proceeding brought (prosecuted) by it.

Business Law

is primarily private law.

Defendant

is the individual that is being inquired to participate in the legal system

Criminal Law

law establishing duties which, if violated, constitute a wrong against the entire community

Private Law

law governing the relationships among individuals and legal entities

Law and Justice

law is no guarantee of justice. Some of history's most monstrous acts have been committed pursuant to "law." Examples include the actions of Nazi Germany during the 1930s and 1940s and the actions of the South African government under apartheid from 1948 until 1994. Totalitarian societies often have shaped formal legal systems around the atrocities they have sanctioned.

Executive Orders

laws issued by the President or by the governor of a State

Government

prohibits and punishes crimes upon the ground of public policy, which may include the safeguarding of the government itself, human life, or private property.

Procedural Law

rules for enforcing substantive law

Administrative Law

rules, regulations, orders and decisions made by administrative agencies

Legislative Law

statutes adopted by legislative bodies; includes Treaties and Executive Orders

Constitution

the fundamental law of a particular level of government—establishes the governmental structure and allocates power among the levels of government, thereby defining political relationships. One example is Separation of Powers

Disputes

which inevitably arise in a society as complex and interdependent as ours, may involve criminal matters, such as theft, or noncriminal matters, such as an automobile accident. Because they threaten the stability of society, the law has established an elaborate and evolving set of rules to resolve them. In addition, the legal system has instituted societal remedies, usually administered by the courts, in place of private remedies such as revenge.