Your SlideShare is downloading. ×
Common Law Review Lecture
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Common Law Review Lecture

3,558

Published on

Review lecture for students of Englisch für Rechtswissenschaften: Institutionen von Staat und Gesellschaft/Recht und Rechtsfindung im anglo-amerikanischen Rechtskreis at Osnabrück University.

Review lecture for students of Englisch für Rechtswissenschaften: Institutionen von Staat und Gesellschaft/Recht und Rechtsfindung im anglo-amerikanischen Rechtskreis at Osnabrück University.

3 Comments
3 Likes
Statistics
Notes
No Downloads
Views
Total Views
3,558
On Slideshare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
127
Comments
3
Likes
3
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide
  • Transcript

    • 1. Common Law Legal System ReviewCommon Law Legal Slide 1Systems Review 30 June 2011
    • 2. Common Law● Anglo-American Legal System● Judge made component of legal system● Process or approach to legal analysis● NOTE – you will not be tested on the history lecture, although you should understand the origins of common law and equity. Common Law Legal Slide 2 Systems Review 30 June 2011
    • 3. Lawyers● Bifurcated system in England (Barristers and Solicitors) ➢ Note differences between the two  solicitor “stands in shoes of client”, barrister “represents”● One system in U.S. (lawyer or attorney) ➢ lawyer “stands in shoes” and “represents” clients● In both systems lawyers are “fact finders” and “law presenters” ➢ Remember, judges have no independent fact finding power. Common Law Legal Slide 3 Systems Review 30 June 2011
    • 4. Judges (U.K.)● Under the Constitutional Reform Act of 2005, judges are nominated by the Judicial Appointments Commission and selected by the Lord Chancellor for a “life term” until they reach the age of 70. ➢ Supreme Court - Justice ➢ Court of Appeals – Lord Justice of Appeal ➢ High Court – Judge of the High Court ➢ Crown Court – Crown Court Judge ➢ County Court – District Court Judge Common Law Legal Slide 4 Systems Review 30 June 2011
    • 5. Judges in the U.S.● Federal ➢ Appointed for life by the President after confirmation by the Senate. ➢ Highest Court – Supreme Court Justice ➢ Court of Appeals and District Court – Judge● States ➢ 21 states have elections, the rest of some system of appointments. ➢ Only 12 states have lifetime appointments ➢ Names of judges are same as above. Common Law Legal Slide 5 Systems Review 30 June 2011
    • 6. Role of the Judge● Ensure Due Process and Fairness● Rule on Procedural Matters● Determine applicable law ➢ Instruct jury on such in jury trial● Can be fact finder ➢ bench trial, summary proceedings● Hand down sentences ➢ Except capital punishment in the U.S. Common Law Legal Slide 6 Systems Review 30 June 2011
    • 7. Juries● Right to juries ➢ Limited in U.K., mostly used in criminal cases ➢ Constitution provides to rights juries in federal cases. The rights varies in state courts.  6th Amendment (criminal), 7th Amendment (civil)● Selection ➢ U.K. - judge calls 12 people and asks if they can serve ➢ U.S. - lengthy process whereby judge and lawyers get to ask potential jurors a series of questions and remove them if necessary (challenge of cause, peremptory challenge) Common Law Legal Slide 7 Systems Review 30 June 2011
    • 8. Juries● Juries vary in size in the U.S. depending upon jurisdiction.● Benefits of the system: ➢ citizens take part in legal system, builds trust, many say it is the cornerstone of democracy.● Limits of the system: ➢ Delay and costs (U.S.), evidence presented slowly, competency issues, rigidity of system, etc.● Jury Nullification - Jurys refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Common Law Legal Slide 8 Systems Review 30 June 2011
    • 9. British Court StructureCommon Law Legal Slide 9Systems Review 30 June 2011
    • 10. U.S. Court System Note – most state systems have a similar tiered systemCommon Law Legal Slide 10Systems Review 30 June 2011
    • 11. U.S. Appeals CourtCommon Law Legal Slide 11Systems Review 30 June 2011
    • 12. Common Law Legal Slide 12Systems Review 30 June 2011
    • 13. Pleadings: First Stage● All cases begin with the filing of pleadings ➢ Lawsuit initiated by filing of a Complaint, Petition, Claim (varies by jurisdiction) ➢ Defense then files: Answer, Response, Demurrer● Summary Judgment is decision based solely upon the pleadings. Common Law Legal Slide 13 Systems Review 30 June 2011
    • 14. Discovery: Stage Two● Basically, a fact finding mission● Kinds: ➢ Depositions - Self-executing procedure for examination under oath of an expected party or witness for discovery or as evidence. ➢ Interrogatories - Self-executing procedure for submission of written questions to party to be answered under oath. ➢ Demands to Inspect or Produce Documents (parties only) ➢ Requests for Admissions (parties only) ➢ Physical & Mental Exams (parties only) Common Law Legal Slide 14 Systems Review 30 June 2011
    • 15. Choosing the factfinder Judge or Jury Opening Statements Plaintiffs Case Defendants Case Plaintiffs Rebuttal Instructions to the JuryClosing Arguments Verdict & Judgment & Jury Deliberation
    • 16. Judicial Control of Jury Action● Directed Verdict ➢ made at the close of either partys arguments BEFORE jury has a chance to decide. ➢ the evidence is so compelling that only one result could follow● Judgment Not Withstanding the Verdict (JNOV) ➢ made by either party AFTER jury verdict.● New Trial Common Law Legal Slide 16 Systems Review 30 June 2011
    • 17. Precedent● The legal principle or rule created by a court which guides judges in subsequent cases with similar issues or facts.● Sometimes called Authority● To serve as precedent for a pending case, a prior decision must have a similar question of law and factual situation. Common Law Legal Slide 17 Systems Review 30 June 2011
    • 18. Stare Decisis● Latin for “to stand by things decided” (roughly)● the notion that prior court decisions must be recognized as precedents● Civil Law Systems believe stare decisis interferes: ➢ with judges ability to interpret the law ➢ legislatures ability to make the law● Advantages: ➢ Efficiency in administration of justice, allows for accurate predictions of outcomes, allows for equal treatment of people in like situations = fundamental justice Common Law Legal Slide 18 Systems Review 30 June 2011
    • 19. Holding● Ratio decidendi is a Latin phrase meaning "the reason for the decision". ➢ the legal principles used by a court to compose the rationale of a particular judgment. ➢ Also known as rule(s) or holding(s). ➢ potentially binding precedent, through the principle of stare decisis.● Thus, it is both: ➢ reason used by court to come particular decision ➢ rule that is binding on other courts Common Law Legal Slide 19 Systems Review 30 June 2011
    • 20. How to Find the Ratio● Look for the rule(s) of law used by the court to come to its decision(s).● The rule must be necessary for the decision. ➢ the result would have been different but for the rule.● In the end, there is no real “rule” for finding the rule. It takes practice and knowledge. Common Law Legal Slide 20 Systems Review 30 June 2011
    • 21. Dictum● Latin for "remark,"● a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle.● Has no value as precedent.● Often hear “it is only dictum (dicta).” Common Law Legal Slide 21 Systems Review 30 June 2011
    • 22. Avoiding Precedent● Ways to avoid precedent: ➢ Overrule (few courts have this option) ➢ Distinguish ➢ to argue that the rule in one court decision does not apply to a particular case although there is an apparent similarity. ➢ common technique to avoid precedent.● Disapproving Precedent ➢ court can ignore precedent with hope that higher court will overrule (change) the precedent. Common Law Legal Slide 22 Systems Review 30 June 2011
    • 23. Analogical Reasoning● Also called reasoning by analogy● Analogical reasoning is a method of using past experience to improve problem solving performance in similar new situations. Common Law Legal Slide 23 Systems Review 30 June 2011
    • 24. Common Interpretation RulesLiteral/Plain Meaning Rule●Historical Rule/Original Intent●Golden Rule●Mischief Rule (U.K. only)●Purposive/Functional Rule● Common Law Legal Slide 24 Systems Review 30 June 2011
    • 25. Canons of Interpretation● ejusdem generis ➢ treating items "of the same kind" together● Noscitur a sociis ➢ known from associates● expressio unius est exclusio alterius ➢ "the expression of one thing is the exclusion of another"● Strict Construction Common Law Legal Slide 25 Systems Review 30 June 2011

    ×