ANNOUNCEMENTS

 PowerPoint Policy.
 Marbury v. Madison reading – due next Tuesday.
 Available online
 Read Chapters 1 and 2 of Neubauer by this Thursday.
 I will discuss Cour t Obser vation Analysis next Thursday.
WHAT IS LAW?
 PHILOSOPHICAL FOUNDATIONS

Positivism

 Law is a human construct created by societal

actors/institutions.
 The central tenants of John Austin’s theor y of “Legal
Positivism”:
 Issued by a sovereign.
 Backed by sanctions.
 Sovereign is obeyed by the majority.
 Problems with this theory?
 PHILOSOPHICAL FOUNDATIONS

Natural Law

 Law is a preexisting and universal construct applicable to all

humankind.
 Often based upon concepts of morality, or the law of a divine.
 Can be discovered through human reasoning.
 Positive law contradictor y to natural law is not really law.
 Natural rights theor y extends from concepts of natural law.
 Problems with this theor y?
 Examples?
 CLASS EXERCISE: DEFINING LAW

 Class definition: “Rules and Regulations.”

 Textbook definition: “a body of rules enacted by public
officials in a legitimate manner and backed by the force of
the state.”
 Body of rules.
 Enacted by public officials.
 Enacted in a legitimate manner.
 Backed by the force of the state.

Key Question: What is the purpose of law?

 LEGAL COMPLEXIT Y

Law is not a unitary set of documents.

Law has many fragments and layers;

derives from multiple sources,
institutions, actors, etc .
 PRIMARY SOURCES OF LAW

Constitution
Statutes
Administrative Regulations
Treaties/Congress-Executive Agreements
Executive Orders
Case Law/Court Decisions
Local Ordinances
 FEDERALISM

Federal Law

 Concept of federalism derives from the U.S. Constitution – power

is divided and shared between federal and state/local levels of
government.
 Federal Law
 Federal power greatly expanded as a result of Great
Depression/Roosevelt era.
 But, power of federal government is not unlimited.
 Commerce clause and taxing/spending powers are primary vehicles for
modern power of the federal government
 Commerce clause: “To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.”
 Taxing and spending: “The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties, Imposts and
Excises shall be uniform throughout the United States…”
 What are other federal powers?
 FEDERALISM

State and Local Law

 What are examples of state and local law?

 Constitutional standard: can exercise powers neither exclusively
delegated to the federal government nor prohibited to the states via
the U.S. Constitution.
 Concurrent v. Exclusive Powers.
 Supremacy Clause: “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority
of the United States, shall be the supreme Law of the Land ;
and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrar y
notwithstanding .”
 CRIMINAL V. CIVIL LAW

Criminal Law

 Defined by statutes.
 Mostly a product of state law.
 Often referred to as “public law.”
 Punishment for wrongdoing against society
 Prosecution by the state
 What is a crime?: action + mental state
 Actus Reus: “guilty act”
 Mens Rea: “guilty mind”
 CRIMINAL V. CIVIL LAW

Civil Law

 Often referred to as “private law.”

 Primarily involves resolution of disputes between private
par ties.
 Sometimes the government can act as a private party.
 Differences between civil and criminal law?
 AREAS OF CIVIL LAW

 Tor t: “A civil wrong not arising out of contract or statute .”

 Usually involves injury to person or property (but not in all cases).
 Involve various mental states.
 Overlaps with criminal law.
 Contract: “An agreement between two or more competent
par ties in which an offer is made and accepted, and each
party benefits.”
 Proper ty Law/Real Estate
 Family Law
 Separate family courts exist in many states.
 Statutor y Private Right of Action
 Strong overlap between federal and state law.
 Defined by statute.
 SUBSTANTIVE V. PROCEDURAL LAW

 Substantive Law: Establishes substantive rights and

obligations.

 Procedural Law: Establishes methods for enforcing

substantive legal rights and obligations.
 E.g. Rules of Criminal or Civil Procedure.
 LEGAL HIERARCHY

Sources of Law Federalism

Constitution
Federal Law
Statutes/Treaties

Administrative Law State Law

Court Decisions
 Caveat: judicial review
Law on the Books

V.

Law in Action