Definitions I

Writ: n. a written order of a judge requiring specific action by the person or entity to whom the writ is directed. (dictionary.law.com)

Real Property: n. 1) all land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all "interests" in the property, which may include the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate), the right to drill for oil, the right to get the property back (a reversion) if it is no longer used for its current purpose (such as use for a hospital, school or city hall), use of airspace (condominium) or an easement across another's property. Real property should be thought of as a group of rights like a bundle of sticks which can be divided. It is distinguished from personal property which is made up of movable items. 2) one of the principal areas of law like contracts, negligence, probate, family law and criminal law. (dictionary.law.com)

Condominium: n. title to a unit of real property which, in reality, is the airspace which an apartment, office or store occupies. An increasingly common form of property title in a multi-unit project, condominiums actually date back to ancient Rome, hence the Latin name. The owner of the condominium also owns a common tenancy with owners of other units in the common area, which includes all the driveways, parking, elevators, outside hallways, recreation and landscaped areas, which are managed by a homeowners' or tenant's association. If the condominium unit is destroyed by fire or other disaster, the owner has the right to rebuild in his/her airspace. Most states have adopted statutes to cover special issues involving development, construction, management and taxation of condominium projects. (dictionary.law.com)

Common Law: n. the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror invaded England in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. By the 14th century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery), which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana, which is still influenced by the Napoleonic Code. In some states the principles of Common Law are so basic they are applied without reference to statute. (dictionary.law.com)

Civil Law: n. 1) a body of laws and legal concepts which come down from old Roman laws established by Emperor Justinian, and which differ from English common law, which is the framework of most state legal systems. In the United States only Louisiana (relying on the French Napoleonic Code) has a legal structure based on civil law. 2) generic term for non-criminal law. (dictionary.law.com)

Intro to Law, pg 26-37

Chapter II: Common Law, Equity, and the Development of the Anglo-American Court System


A. The Common Law Courts and the Writ System


1. Common Law Courts

• Common law came from the medieval courts of the English king: the Court of Exchequer for the king's property and revenue; the Court of King's Bench for criminal actions and civil actions that breached the peace; and the Court of Common Pleas for all other civil disputes. Like all courts worth the name, they fought over jurisdiction, especially the last two.
  

Excerpt: A.W. Scott & R.B. Kent, Cases and Other Materials on Civil Procedure

• The Earlier English Courts: There were the three just mentioned, plus the Court of Chancery, which covered equity.
• Common Pleas: AKA Common Bench. Magna Carta made sure the court's location was fixed (at Westminster Hall) instead of following the king. It had a Chief Justice and three puisne (puny) judges. It had jurisdiction over it's own things and things brought to it from some local courts; also over common pleas (problems between individuals) but not criminal stuff (aka things against the crown). Exchequer and King's Bench had jurisdiction over some private problems too, but Common Pleas had exclusive jurisdiction over actions to recover land (real actions).
• King's Bench: Criminal cases, and civil actions involving breaches of the peace, and any other actions brought against a person in the custody of the king's marshal of Marshalsea Prison. It expanded to include other civil actions by virtue of that last, by first "arresting" someone on a spurious charge to get them into custody and thus into the court's jurisdiction. Real actions were excepted to this. [In order to start the proceedings, a "bill of Middlesex" was required, which directed the sheriff to arrest the miscreant on a (spurious) charge under the courts jurisdiction, with the actual charge tacked on. Later on an original writ worked too.] Court had the Chief Justice of England and three puisne judges.
• Exchequer: King's property and revenue. Jurisdiction was enlarged by clever uses of a writ of quo minus. The plaintiff would claim to have a debt against the crown that he could not pay due to the defendant refusing to discharge a liability to the plaintiff. Interestingly, the crown seems to have never taken advantage of the claims of debt being made (probably because the crown's personal court gained so much power from people making that claim). Court had a Chief Baron of the Exchequer and three puisne barons.
• Through these little tricks, all three superior courts of common law developed concurrent jurisdiction over actions between subjects, except real actions. Individuals could choose whichever court they wished.
• Exchequer Chamber: If a losing party wanted to try again, they had to obtain a writ of error from the Court of Chancery. The losing party became the "plaintiff in error" and the winning party, the "defendant in error." Courts of error went Common Pleas->King's Bench->House of Lords or Exchequer->Exchequer Chamber. Exchequer Chamber consisted of the Chancellor and Treasurer at first, but later just the Chancellor, with judges of the King's Bench and Common Pleas as assessors. Under Queen Elizabeth, it was provided that a case could go from King's Bench to another Exchequer Chamber composed of the judges of the Common Pleas and Exchequer. In 1830 the old E Chambers were abolished and a new one was created that consisted of judges from all three superior courts (minus whichever one had been in error). From this E Chamber, the case could be carried to the House of Lords as the last resort.
• House of Lords: In theory, Parliament had the power to correct decisions of any lower court, but in practice it was only the House of Lords who did so after the later Middle Ages. Appeals were treated as any other matter of parliament until 1844, when it established that only people who actually knew the law could be involved. Thus the judicial House of Lords consisted of the Lord Chancellor, ex-Lord Chancellors, and other peers who held or had held high judicial office. In 1876 it was increased by Lords of Appeal in Ordinary, to assist the hereditary peers learned in law.
• The Nisi Prius System: England's judicial system formed around contests between the king and local authorities. Pre-1066, it was between the king and his Witan (advisors) on one side and local tribunals on the other. Post-1066, the Norman kings' business was to establish a strong central government within the technological constraints of the time. They did this by sending judges and representitives on circuits throughout the realm.
• The full bench of each court would meet four times a year in Westminster. These times were called Hilary Term, Easter Term, Trinity Term, and Michaelmas Term, and each lasted but a few weeks. They determined all questions that arose during an action, except those during a trial. They could pass judgement on verdicts based on a variety of appeals. Basically, they determined the legality of questionable issues.
• Between these terms, the judges of the bench and others appointed by the king went on "vacation," meaning they did their circuits through the country. Trials would usually be conducted during this period, with appeals going to the superior courts during their terms.

2. Modes of Trial

• Some of the old school English modes of trail were wager of law (compurgation), battle, and the ordeal. The royal courts grew in popularity by using trial by jury over these older methods.
• A jury at the dawn of common law was not quite what a jury is today. Rather, it was a body of witnesses who had been summoned by the king's officials to testify. It was a device for a strong king to collect information.
• Henry II introduced jury trial to civil litigation, using neighbors familiar with the case as jurors. These jurors were used not just as witnesses but also as judges of fact.

3. The Writ System

• When a litigant wanted a royal court to take jurisdiction of a case, he asked the king's chancellor to issue a writ. The chancellor was an ecclesiastic who kept the king's great seal and supervised a staff who prepared all documents issued in the name of the king.

W.P. Blackstone, Commentaries of the Laws of England

• In order to get to the judiciary, a supplicant had to first contact the king via the clerks of the King's Chancellor and get a writ issued. The writ would tell the sheriff to find the accused party and make them do justice to the complainant, or else appear in court and answer the accusations against him. This system was part of a strong kingship; judges saw no cases without the king's approval via writ.

Examples of Early Writs

R. Pound & T. Plucknett, Readings on the History and System of the Common Law

• "William King of England to the Abbot of Peterborough, Greeting: I command and require you that you permit the Abbot of St. Edmund to receive sufficient stone for his church, as he has had hitherto, and that you cause him no more hindrance in drawing stone to the water, as you have heretofore done. Witness the Bishop of Durham (c. 1070-1080 A.D.)."
• These writs were pretty much just executive orders issued by the king.
• At the end of the twelfth century, a new writ came about that simply ordered a sheriff to bring someone before the royal courts to answer for an act. This became the prevailing form used to start things off in the royal courts.
• Writs from the King's Chancery were called "original writs" to distinguish them from writs issued by a court during a judicial proceeding.
• Writs started out as royal favors- permission to use the king's courts for what would otherwise be handled locally. They were executive because each writ covered only one situation.
• They evolved into writs de cursu- writs that were issued "of course" for anyone who could bring his case within a formula found in the existing writs. Lawyers would search the Register for writs that fit their client's case; if none fit, the client was SOL unless the chancellor was willing to make a new writ.
• Since every new writ expanded the jurisdiction of the royal courts, it was a rather political move by the chancellor to draft one. Under a strong king, the feudal lords would perhaps put up with it, but with a weak one there would be trouble. Henry II was particularly good at withstanding the pressures of the feudal aristocracy, and did a great deal to expand the power of the royal courts and common law. However, Henry III was a wuss and during his reign the King's Council (the predecessors of Parliament) enacted the Provisions of Oxford in 1258. This said that the Chancellor could seal no new writs without the sanction of the king and his council- meaning the council, made up of feudal lords, could keep its fingers in the formation of writs.
• Under Edward I, not-a-wuss, the Chancery got some power back thanks to the Statute of Westminster II. True writ innovations were reserved to parliament, but the chancery could issue writs in cases that were similar to pre-existing writs.

Statute Westminster II

• Everything I just said in the last sentence of the paragraph just above, except in fancier language.

B. The Forms of Action at Common Law

1. Introduction

• "Forms of action"- part of the writ system, the things done in a particular writ. Unique procedures were followed in each. As the writs proliferated, it became easier to choose the wrong writ for a particular case, resulting in catastrophe.
• All three royal courts eventually obtained the system of original writs. A writ stated the substance of the plaintiff's claim, as well as the particular mode of pleading and the type of judgment involved. If a plaintiff picked an inappropriate writ, they had to start all over again. "He must play the rules of the game he has chosen." -F.W. Maitland.
• In the latter half of the nineteenth century, both the UK and the US abolished forms of action in favor of a single uniform method of civil action.
• Another Maitland quote: "The forms of action we have buried, but they rule us from their graves."
• This doesn't mean that the law suddenly thinks trespass is the same as assault- only that the form followed in either case is the same. There is still a requirement to prove that the facts of the case fit the characteristics of trespass. The forms have gone but the substance remains.
• The abolition of the forms of action did not create any new rights or remedies- the whole of the system of common law has deep tangled roots in the old system, and there is very little in the new that wasn't in the old. Many of the strange twists modern law takes can be found in the forms of action.
• The next page is 37, but it starts section 2, and it seems odd to only do a sliver of that section, so I'll leave it for now.
  

Intro to Law textbook notes on pages 1-17

Introduction: The Nature and Functions of Law

A. Prefatory Comments

• If you want to know why an institution is the way it is, you need to know what it is designed to accomplish. It is silly to attempt to fix an institution without knowing what it should be doing in the first place. This includes the institution of the law.
• Figuring out what the law is supposed to do is called "Jurisprudence." This is not a Jurisprudence textbook, it is a textbook for noobs. But we're going to try to make you figure it out anyway. Noob.

B. Definitions of Law

• Figuring out what the law is for is hard because nobody agrees except on the most basic of principles (which we will not mention by name). We will however, include a list of many conflicting descriptions of the law! Not only that, but Classic descriptions, which span from 51 BC to 1939 AD. These descriptions seem to be cherry-picked to contradict each other.
• That list wasn't really contradictory. They just emphasized different things. Re-read the list.
• Modern Opinion. These are less contradictory, and most seem to express the idea that without laws we would all just eat each other. There is a particularly ironic one from Martin Luther King, Jr. (Why not Modern Definitions, I wonder?)
• Can I make a paragraph entirely of questions? Also, as a lawyer, do you think you should have a soul?
• The answers to all those questions are sort of in this book. Please don't forget them.

Chapter 1: Law and the Process of Classification

A. The Meaning and Importance of Classification

• Law exists to make people behave. For some (unstated) reason, this cannot be done on an individualized basis; it has to be generally applicable. In order to be generally applicable, we must treat individuals as parts of general categories which will have varying legal rights and responsibilities. Part of the job of the legal system is to put things into categories and explain how things in those categories ought to behave... I mean, do behave.
• Even though you took the SAT and got into college, you might not know what "to classify" means. We're going to spend a paragraph constructing a clever metaphor to explain it for you.
• The law has lots of classifications for people, but the people in question are sometimes rather difficult to classify. This causes problems.
• You're going to have to spew a lot of really convincing bullshit when it comes to this classification thing. Start practicing now.
• Besides the fact that real people are hard to classify, there are a couple other things to know. The first is that laws can also be classified as Permissible and Impermissible thanks to the constitution. The second is that our constitutions likes to treat people equally, which is bloody difficult when classifications mean by definition that you treat them differently.
• Judges are the ones who label laws permissible or impermissible. There are lots of reasons they can do so.
• But lets get back to that equality thing. Basically, classification is OK as long as it serves some good legal objective; the ends justify the means.
• "The constitutional norm of equality under the law does not prohibit classifications which treat people differently, but it does demand that such classifications be justified by some goal other than the unequal treatment itself, and that the classifications serve that goal in some direct or even essential way."
• Let's give you an example of something really unfair, because the problem you are having, I'm sure, is trying to come up with an unfair law. In any case, whether a law is unfair or not is one of the main questions of constitutional law.

B. Some Basic Distinctions and Classifications of the Law

• Most legal definitions are too technical for you to understand, noob. Let's look at some nice, general classifications instead:

1. International Law and Municipal Law

• International law deals with laws between nations, while municipal law deals with law within nations. International law consists mostly of agreements between nations.
• Nations consider themselves sovereign, which makes the idea of international law odd, since there is no higher authority involved. (Apparently the law is by nature hierarchical?) In any case, either sovereignty or international law is a suspect concept.
• Municipal law consists of the laws that apply within a sovereign state.
• PS The Commonwealth of Kentucky and all the other "sovereign states" of the union don't count. Federal law trumps 'em.

2. Civil Law and Common Law

• Most legal systems fall into one of these two categories. (Common law includes equity).
• Civil law stems from the Roman Empire.
• Some civil law countries: Continental Europe (though only loosely in the frozen north), Latin America, Japan, and sorta South Africa.
• Civil law sort of holds in Islamic countries and Russia.
• Chinese law was sort of like Russian law until the Cultural Revolution. During the 60s and 70s law was treated as a reactionary institution not truly necessary in a socialist society.
• Things changed in the 80s because of international trade, though mediation is still preferred to litigation.
• Louisiana has some civil law practices mixed with common law. So do Puerto Rico and Quebec.
• Common law stemmed from medieval England.
• Some common law countries: US, England, Scotland, Ireland, Canada, Australia, and New Zealand. India kinda sorta too.
• "Few generalizations can be made with respect to the legal systems of the black African counties." Um...
• Civil law systems put primacy on the laws and statutes; Common law systems put primacy on the judicial precedents.
• Civil law=inquisitorial, common law=adversarial

3. Public Law and Private Law

• Private Law= Contracts, Torts, and Property (and later, Commercial Law, Trusts and Estates, Corporations, Securities Law and Labor Law).
• Public Law=Con Law, Administrative Law, Taxation, and Trade Regulation
• Procedure counts as public law because it deals with the rules for public organs. This includes Civil Procedure, Evidence, Conflict of Laws, Federal Jurisdiction, and Criminal Law/Procedure.

4. Substantive Law and Adjective Law

• These divisions cut across public and private law. Substantive law is the what; adjective law is the how.

5. Legislation, Case Law, and Customary Law

• Legislation=documents by the legislature=statute or code. Codes are compilations of statutes?
• Executive and administrative law occur as executive orders and administrative regulations, respectively. It is like statutory law.
• Case law comes from the precedents set by the courts, aka judges.
• Judges are bound by legislation unless it is unconstitutional. However, judges may interpret case law however they please unless a court of higher jurisdiction tells them otherwise.
• Legislation and case law interact when interpreting vague or ambiguous legislation. The court with the equivalent jurisdiction decides the case law- SC and the Constitution, Ohio SC and Ohio constitution, unless the little guys do something the big guys don't allow.
• Customary law is kind of law, maybe. It's the law that exists without being handed or written down- like exogamous unilineal descent groups. Basically, it is law without a state to force it. International law could fall into this category.
• Customary practices have a tendency to greatly inform case law in America.

6. Separation of the Legislative, Executive, and Judicial Powers

• America loves separation-of-powers!
• The legislature can draft laws that deal with classes of people and indefinite numbers of situations. Congress has the ability to enact "private laws" that (1) except named individuals from immigration or naturalization laws; (2) grant individuals compensations beyond the Federal Tort Claims act; and (3) waive claims that the Fed Gov't has against individuals under a general law. Most state legislatures are forbidden this power by their state constitutions.
• An executive act is the exercise of gov't power to accomplish some public purpose, like construct a highway. Under our "government of laws," these acts are restricted by many legal rules and regulations.
• Judicial power is used to settle controversies between entities. Judicial acts usually apply to concrete and discrete incidents, and unlike executive acts are almost entirely focused on resolving conflict.
• Each of the three branches has its fingers in each of the other branches businesses, quite legally. Some of these were written into the constitution, while others have developed over time.

Intro to Me

I'm starting this blog as a way to organize my briefs and outlines and such for law school. Tagging and links seem like a rather convienent way to sort data, plus I'll get some benefit from re-entering the information here.

Please feel more than free to comment, especially if you are in a class with me!

Plain English Exercise 1

Textbook: Plain English for Lawyers, Fifth Edition by Richard C. Wydick

Chapter 2, Exercise 1:

1. The majority opinion gives three reasons for rejecting the Supreme Court's approach in it's earlier decisions on the Sixth Amendment's Confrontation Clause.
2. Erickson has moved to sever his case from those against Orrick and Sims and try it seperately.
3. When settling a client's claim, a lawyer must not offer or agree to restrict their own right to practice law. This includes the right to represent or act on behalf of other persons.
4. In Brown v. Board of Educuation of Topeka, the United States Supreme Court concluded that the system of "separate but equal" violated the Fourteenth Amendment.