Introduction to Law & the Legal System Individual & the Law

What is Law?

Law & Values We expect our legal system to achieve many goals: Protect basic human rights Promote fairness Help resolve conflicts Promote order and stability Promote desirable social and economic behavior Represent the will of the majority Protect the rights of minorities

Human Rights Universal Declaration of Human Rights (UDHR) Adopted by the United Nations in 1948 under the leadership of Eleanor Roosevelt Has been agreed to by almost every nation in the world, but is NOT a binding treaty Proclaims the right to: Liberty Education Political & Religious Freedom Economic Well-being Bans Torture Claims All people have the right to participate in their government process

United Nations treaties to enforce Human Rights: The International Covenant on Civil and Political Rights protects the freedoms of speech, religion, and press and the right to participate in government The International Covenant on Economic, Social and Cultural Rights provides for the right to adequate education, food, housing, health care, protection of property, and employment in safe conditions at an adequate salary The Convention of the Rights of the Child spells out basic human rights to which children everywhere are entitled, including the right to education and to be free from exploitation

Balancing Rights With Responsibilities With every right there comes a responsibility Individual rights must be matched by social responsibilities You want a jury trial, you must be willing to serve on a jury You want to be governed by elected officials, you must be willing to vote

Kinds of Laws Criminal Laws – regulate public conduct and set out duties owed to society Felonies – penalty is more than 1 year in prison Misdemeanors – penalty is 1 year or less in prison Conviction is reached by determining guilt BEYOND A REASONABLE DOUBT – if there’s any doubt then the jury cannot vote to convict Civil Laws Civil Action – people suing each other Defendant – the person accused of committing the crime Plaintiff – the person harmed in the crime Conviction is reached through a PREPONDERANCE OF THE EVIDENCE – it’s more likely than not that the person is guilty

Lawmaking

Legislatures Legislatures are the primary law-making bodies at the federal and state levels Federal level = U.S. Congress Laws passed by them are called Federal Statutes State level = General Assembly Laws passed by them are called State Statutes Cities towns and counties have law-making bodies too Councils Commissions Laws passed by these groups are called ordinances or regulations

No state or local law can go against the Constitution Article VI of the Constitution, THE SUPREMACY CLAUSE, states that the Constitution is the “Supreme Law of the Land”

When drafting a bill (a proposed law), a legislator must keep in mind the following Is the law written in clear language? Is the law understandable? When does the law go into effect? Does the law contradict any other laws? Is the law enforceable? If so, by whom? Are the penalties for breaking the law clear and reasonable?

Once a bill becomes a law, once someone breaks the law and goes to court, a judge has to interpret it. Judicial interpretation of a law is called legislative intent – what did the legislature intend when they wrote this law?

Agencies Federal Agencies make very specific laws OSHA (Occupational Safety and Health Administration) makes regulations to preserve health and safety on the job Back braces for people lifting heavy items Hard hats for construction workers EPA (Environmental Protection Agency) makes regulations to protect us and the environment TSA (Transportation Security Administration) screen passengers boarding airplanes since 9/11

Before a Federal Agency makes a new regulation, they have to post it in the Federal Register. This gives people time to ask questions and debate the new regulation. Then, they have a public hearing where people can come and voice their opposition or support

Courts Trials are held in courts The loser of a case can appeal the decision to a higher court If the appeals court make a ruling, it sets a precedent for future similar cases.

International Lawmaking Treaties are the main source of international laws. A contract between countries Most treaties, once signed, are supported by the United Nations A treaty signed by the U.S. President and approved by 2/3 of the Senate is a binding law according to the U.S. Constitution.

Advocacy

The Art of Advocacy Advocacy is the active support of a cause. Also involves being able to convince others to support your cause too

Lobbying Lobbying is a way to influence the lawmaking process by convincing lawmakers to vote as you want them to Lobbying comes from the 17th century when people would corner lawmakers in an outer “lobby” to talk advocate their interests

Lobbyists are people who work to convince lawmakers to support their cause Professional Lobbyists – lobbying is their full-time job. Many groups hire professional lobbyists to stay in contact with lawmakers full-time i.e. National Rifle Association Grassroots Lobbyists are people who have other jobs, but care enough about the cause to call and write their legislators in their spare time.

Voting This is our most basic constitutional right. Laws are usually made by an elected legislator and approved by other elected legislators or by referendum – means the people vote on the law. Laws can also be made through initiative – a specified number of registered voters get the proposed law on the ballot through the petition process The law may be approved or rejected by the legislature or the voters

If the voters are unhappy with an elected official, they can institute a recall – where a certain number of registered voters petition to have the said elected official removed from office.

Settling disputes

Methods for Solving Disputes Negotiation – the parties involved try to reach a compromise agreement Three phases of negotiation Step one – Prepare to Negotiate All parties come to the discussion truly wanting to solve the problem Identify the issue causing the problem Consider the issue from the perspective of the other side One the steps above have been followed, each party should identify two workable solutions Step two – Negotiation Listen carefully to what is being said List as many solutions as possible Be realistic Repeat main points, write them down, to make sure both parties understand them Step three – Finalization Agree on what to tell others about how the decision was reached – this avoids conflict in the future

Sometimes negotiation involves arbitration – having someone else listen and make a decision for them Mediation – when a third party tries to listen and help people come to a solution. Their suggestions are NOT binding. Steps in mediation: Introduction Telling the Story Identifying Positions and Interests Identifying Alternative Solutions Revising and Discussing Solutions Reaching an Agreement

The Court System

Trial Courts U.S. is an adversarial system – court cases are a contest between opposing sides. The judge is like a mediator. Some European countries use the inquisitional system – the judge controls the trial and may present evidence, confront witnesses, etc.

Trial Courts Criminal Courts Civil Courts Prosecutor Plaintiff Defendant Represents the State or the Federal Government The Accused The person bringing charges against someone Most never go to trial because a plea bargain is usually reached Many never get to court because a settlement is reached

Steps in a Trial Opening Statement by Plaintiff or Prosecutor Opening Statement by Defense Direct Examination by Plaintiff or Prosecutor Cross-Examination by Defense Motions Direct Examination by Defense Cross-Examination by Plaintiff or Prosecutor Closing Statement by Plaintiff or Prosecutor Closing Statement by Defense Rebuttal Argument Jury Instructions Verdict

Jurors In most cases, they are chosen through a process known as voir dire examination Opposing attorneys questions prospective jurors to see if they want them on the case Not every juror questioned will be chosen Removal for Cause – a prospective juror is removed due to the impression they gave that they could not render a fair decision Peremptory Challenges – each attorney is given a certain number of prospective jurors they can eliminate without giving a reason.

Appeals Courts Appeals Courts hear cases where the losing party thinks something went wrong and they want another set of judges to hear the trial What could go wrong? Error of Law – the judge made a mistake applying the law to the case This is usually the only way a case gets heard by an appeals court

Precedent – this is set when an appeals court renders a decision Precedent – this is set when an appeals court renders a decision. It means this new interpretation or change in interpretation is how the lower courts must also apply the law. Dissenting Opinion – issued by judges who did not agree with the majority opinion Concurring Opinion - issued by judges who agreed with the majority opinion, but not with what it was based on.

State & Federal Court Systems State Courts Hear cases that deal with state law as well as many areas of federal law. State courts have trial courts, depending on the state, they can be called Superior County District Municipal

Federal Courts are courts of limited jurisdiction Criminal & Civil involving federal law Cases when the parties are from different states and the amount disputed is more than $75,000

State Supreme Court (Highest State Court) U.S. Supreme Court State Supreme Court (Highest State Court) Federal Courts U.S. Circuit Court of Appeals Intermediate Court of Appeals State Courts Appeals U.S. District Court (Federal Trial Courts) Municipal or County Court (Local Trials)

Supreme Court of the U.S. Highest Court in the U.S. Created in Article III of the U.S. Constitution 9 Justices 1 Chief Justice 8 Associate Justices Most cases reach the Supreme Court by Writ of Certiorari. The justices review the cases appealing a ruling and use the Writ of Cert which calls up the case Some cases reach by Certificate – the lower courts ask for help because they don’t know how to interpret the law.

Supreme Court begins each new session on the first Monday in October Sessions last until late June Once the Supreme Court issues a ruling, that ruling sets a precedent for future, similar cases This precedent is called Stare Decisis – Let the decision stand

International Courts The International Court of Justice is part of the United Nations. It is located at The Hague in the Netherlands They usually settle disputes between countries

Lawyers

General Information Also called Attorneys Can be employed by Federal or State Government Local Agencies Corporations Unions Trade Associations Public Interest Groups Legal Aid Organizations Private Practice Law Professors Judges Elected Officials

Those who do go to trial are called trial attorneys or Litigators

When does one need a lawyer? Buying or selling real estate Organizing business Changing your family status (divorce, adoption, etc.) Making a will or planning an estate Handling accidents involving personal injury or property damage Signing a large or important contract Defending a criminal charge or bringing a civil suit (suing someone or being sued)

How does one find a lawyer? Recommendations from family or friends is the best way. Better Business Bureau Yellow Pages What about paying them? Most need a RETAINER fee up front (like a down payment) They charge by the hour Some will work for a CONTINGENCY FEE – they take a portion of the settlement you receive if you win.