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Glossary of Legal Terms
A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction.
A judge in the full-time service of the court. Compare to senior judge.
The federal agency responsible for collecting court statistics, administering the federal courts' budget, and performing many other administrative and programmatic functions, under the direction and supervision of the Judicial Conference of the United States.
A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.
A lawsuit arising in or related to a bankruptcy case that begins by filing a complaint with the court, that is, a "trial" that takes place within the context of a bankruptcy case.
A written or printed statement made under oath.
In the practice of the court of appeals, it means that the court of appeals has concluded that the lower court decision is correct and will stand as rendered by the lower court.
A juror selected in the same manner as a regular juror who hears all the evidence but does not help decide the case unless called on to replace a regular juror.
A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.
Latin for "friend of the court." It is advice formally offered to the court in a brief filed by an entity interested in, but not a party to, the case.
The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.
A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the "appellant;" the other party is the "appellee."
The party who appeals a district court's decision, usually seeking reversal of that decision.
About appeals; an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeals review the decisions of the U.S. district courts.
The party who opposes an appellant's appeal, and who seeks to persuade the appeals court to affirm the district court's decision.
A proceeding in which a criminal defendant is brought into court, told of the charges in an indictment or information, and asked to plead guilty or not guilty.
A federal judge who is appointed for life, during "good behavior," under Article III of the Constitution. Article III judges are nominated by the President and confirmed by the Senate.
Property of all kinds, including real and personal, tangible and intangible.
An agreement to continue performing duties under a contract or lease.
An injunction that automatically stops lawsuits, foreclosures, garnishments, and most collection activities against the debtor the moment a bankruptcy petition is filed.
The release, prior to trial, of a person accused of a crime, under specified conditions designed to assure that person's appearance in court when required. Also, can refer to the amount of bond money posted as a financial condition of pretrial release.
A legal procedure for dealing with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the United States Code (the Bankruptcy Code).
An officer of the Judiciary serving in the judicial districts of Alabama and North Carolina who, like the United States trustee, is responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors' committees; monitoring fee applications; and performing other statutory duties.
The informal name for title 11 of the United States Code (11 U.S.C. §§ 101-1330), the federal bankruptcy law.
The bankruptcy judges in regular active service in each district; a unit of the district court.
All interests of the debtor in property at the time of the bankruptcy filing. The estate technically becomes the temporary legal owner of all of the debtor's property.
A judicial officer of the United States district court who is the court official with decision-making power over federal bankruptcy cases.
A formal request for the protection of the federal bankruptcy laws. (There is an official form for bankruptcy petitions.)
A private individual or corporation appointed in all Chapter 7 and Chapter 13 cases to represent the interests of the bankruptcy estate and the debtor's creditors.
A trial without a jury, in which the judge serves as the fact-finder.
A written statement submitted in a trial or appellate proceeding that explains one side's legal and factual arguments.
The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant's guilt. (See standard of proof.)
A bankruptcy case in which the debtor is a business or an individual involved in business and the debts are for business purposes.
A crime punishable by death.
A complete collection of every document filed in court in a case.
The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.
The number of cases handled by a judge or a court.
A legal claim.
The offices of a judge and his or her staff.
A reorganization bankruptcy, usually involving a corporation or partnership. A Chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. Individuals or people in business can also seek relief in Chapter 11.
The chapter of the Bankruptcy Code providing for adjustment of debts of a "family farmer" or "family fisherman," as the terms are defined in the Bankruptcy Code.
The chapter of the Bankruptcy Code providing for the adjustment of debts of an individual with regular income, often referred to as a "wage-earner" plan. Chapter 13 allows a debtor to keep property and use his or her disposable income to pay debts over time, usually three to five years.
A person appointed to administer a Chapter 13 case. A Chapter 13 trustee's responsibilities are similar to those of a Chapter 7 trustee; however, a Chapter 13 trustee has the additional responsibilities of overseeing the debtor's plan, receiving payments from debtors, and disbursing plan payments to creditors.
The chapter of the Bankruptcy Code dealing with cases of cross-border insolvency.
The chapter of the Bankruptcy Code providing for "liquidation," that is, the sale of a debtor's nonexempt property and the distribution of the proceeds to creditors. In order to be eligible for Chapter 7, the debtor must satisfy a "means test." The court will evaluate the debtor's income and expenses to determine if the debtor may proceed under Chapter 7.
A person appointed in a Chapter 7 case to represent the interests of the bankruptcy estate and the creditors. The trustee's responsibilities include reviewing the debtor's petition and schedules, liquidating the property of the estate, and making distributions to creditors. The trustee may also bring actions against creditors or the debtor to recover property of the bankruptcy estate.
The chapter of the Bankruptcy Code providing for reorganization of municipalities (which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts).
The judge who has primary responsibility for the administration of a court; chief judges are determined by seniority
A creditor's assertion of a right to payment from a debtor or the debtor's property.
A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.
The court officer who oversees administrative functions, especially managing the flow of cases through the court. The clerk's office is often called a court's central nervous system.
Property that is promised as security for the satisfaction of a debt.
The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.
A special condition the court imposes that requires an individual to work – without pay – for a civic or nonprofit organization.
A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant.
Prison terms for two or more offenses to be served at the same time, rather than one after the other. Example: Two five-year sentences and one three-year sentence, if served concurrently, result in a maximum of five years behind bars.
Approval of a plan of reorganization by a bankruptcy judge.
Prison terms for two or more offenses to be served one after the other. Example: Two five-year sentences and one three-year sentence, if served consecutively, result in a maximum of 13 years behind bars.
A bankruptcy case filed to reduce or eliminate debts that are primarily consumer debts.
Debts incurred for personal, as opposed to business, needs.
A claim that may be owed by the debtor under certain circumstances, e.g., where the debtor is a cosigner on another person's loan and that person fails to pay.
An agreement between two or more people that creates an obligation to do or not to do a particular thing.
A judgment of guilt against a criminal defendant.
Legal advice; a term also used to refer to the lawyers in a case.
An allegation in an indictment or information, charging a defendant with a crime. An indictment or information may contain allegations that the defendant committed more than one crime. Each allegation is referred to as a count.
Government entity authorized to resolve legal disputes. Judges sometimes use "court" to refer to themselves in the third person, as in "the court has read the briefs."
A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.
Generally refers to two events in individual bankruptcy cases: (1) the "individual or group briefing" from a nonprofit budget and credit counseling agency that individual debtors must attend prior to filing under any chapter of the Bankruptcy Code; and (2) the "instructional course in personal financial management" in chapters 7 and 13 that an individual debtor must complete before a discharge is entered. There are exceptions to both requirements for certain categories of debtors, exigent circumstances, or if the U.S. trustee or bankruptcy administrator have determined that there are insufficient approved credit counseling agencies available to provide the necessary counseling.
A person to whom or business to which the debtor owes money or that claims to be owed money by the debtor.
Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).
Latin, meaning "in fact" or "actually." Something that exists in fact but not as a matter of law.
Latin, meaning "in law." Something that exists by operation of law.
Latin, meaning "anew." A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge's ruling.
A person who has filed a petition for relief under the Bankruptcy Code.
A debtor's detailed description of how the debtor proposes to pay creditors' claims over a fixed period of time.
A judge's statement about someone's rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.
A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.
An individual (or business) against whom a lawsuit is filed.
In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.
An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.
A release of a debtor from personal liability for certain dischargeable debts. Notable exceptions to dischargeability are taxes and student loans. A discharge releases a debtor from personal liability for certain debts known as dischargeable debts and prevents the creditors owed those debts from taking any action against the debtor or the debtor's property to collect the debts. The discharge also prohibits creditors from communicating with the debtor regarding the debt, including through telephone calls, letters, and personal contact.
A debt for which the Bankruptcy Code allows the debtor's personal liability to be eliminated.
A written document prepared by the chapter 11 debtor or other plan proponent that is designed to provide "adequate information" to creditors to enable them to evaluate the chapter 11 plan of reorganization.
Procedures used to obtain disclosure of evidence before trial.
Court action that prevents an identical lawsuit from being filed later.
Court action that allows the later filing.
Income not reasonably necessary for the maintenance or support of the debtor or dependents. If the debtor operates a business, disposable income is defined as those amounts over and above what is necessary for the payment of ordinary operating expenses.
A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.
In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.
French, meaning "on the bench." All judges of an appellate court sitting together to hear a case, as opposed to the routine disposition by panels of three judges. In the Ninth Circuit, an en banc panel consists of 11 randomly selected judges.
Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy (see damages). A separate court of "equity" could order someone to do something or to cease to do something (e.g., injunction). In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases.
The value of a debtor's interest in property that remains after liens and other creditors' interests are considered. (Example: If a house valued at $60,000 is subject to a $30,000 mortgage, there is $30,000 of equity.)
Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.
A proceeding brought before a court by one party only, without notice to or challenge by the other side.
Doctrine that says evidence obtained in violation of a criminal defendant's constitutional or statutory rights is not admissible at trial.
Evidence indicating that a defendant did not commit the crime.
Contracts or leases under which both parties to the agreement have duties remaining to be performed. If a contract or lease is executory, a debtor may assume it (keep the contract) or reject it (terminate the contract).
Property that a debtor is allowed to retain, free from the claims of creditors who do not have liens on the property.
Certain property owned by an individual debtor that the Bankruptcy Code or applicable state law permits the debtor to keep from unsecured creditors. For example, in some states the debtor may be able to exempt all or a portion of the equity in the debtor's primary residence (homestead exemption), or some or all "tools of the trade" used by the debtor to make a living (i.e., auto tools for an auto mechanic or dental tools for a dentist). The availability and amount of property the debtor may exempt depends on the state the debtor lives in.
A bankruptcy case filed either without schedules or with incomplete schedules listing few creditors and debts. (Face sheet filings are often made for the purpose of delaying an eviction or foreclosure
An individual, individual and spouse, corporation, or partnership engaged in a farming operation that meets certain debt limits and other statutory criteria for filing a petition under Chapter 12.
An attorney employed by the federal courts on a full-time basis to provide legal defense to defendants who are unable to afford counsel. The judiciary administers the federal defender program pursuant to the Criminal Justice Act.
As provided for in the Criminal Justice Act, an organization established within a federal judicial circuit to represent criminal defendants who cannot afford an adequate defense. Each organization is supervised by a federal public defender appointed by the court of appeals for the circuit.
Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.
A serious crime, usually punishable by at least one year in prison.
To place a paper in the official custody of the clerk of court to enter into the files or records of a case.
A transfer of a debtor's property made with intent to defraud or for which the debtor receives less than the transferred property's value.
The characterization of a debtor's status after bankruptcy, i.e., free of most debts. (Giving debtors a fresh start is one purpose of the Bankruptcy Code.)
A body of 16-23 citizens who listen to evidence of criminal allegations, which is presented by the prosecutors, and determine whether there is probable cause to believe an individual committed an offense. See also indictment and U.S. attorney.
Latin, meaning "you have the body." A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner's continued confinement. Federal judges receive petitions for a writ of habeas corpus from state prison inmates who say their state prosecutions violated federally protected rights in some way.
Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial
A special condition the court imposes that requires an individual to remain at home except for certain approved activities such as work and medical appointments. Home confinement may include the use of electronic monitoring equipment – a transmitter attached to the wrist or the ankle – to help ensure that the person stays at home as required.
1. The process of calling a witness's testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be "impeached;" 2. The constitutional process whereby the House of Representatives may "impeach" (accuse of misconduct) high officers of the federal government, who are then tried by the Senate.
Latin, meaning in a judge's chambers. Often means outside the presence of a jury and the public. In private.
"In the manner of a pauper." Permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them.
Evidence indicating that a defendant did commit the crime.
The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies. See also information.
A formal accusation by a government attorney that the defendant committed a misdemeanor. See also indictment.
A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.
A director, officer, or person in control of the debtor; a partnership in which the debtor is a general partner; a general partner of the debtor; or a relative of a general partner, director, officer, or person in control of the debtor.
Any relative of the debtor or of a general partner of the debtor; partnership in which the debtor is a general partner; general partner of the debtor; or corporation of which the debtor is a director, officer, or person in control.
A form of discovery consisting of written questions to be answered in writing and under oath.
1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.
A court-approved mechanism under which two or more cases can be administered together. (Assuming no conflicts of interest, these separate businesses or individuals can pool their resources, hire the same professionals, etc.)
One bankruptcy petition filed by a husband and wife together.
An official of the Judicial branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers, including Supreme Court justices.
The position of judge. By statute, Congress authorizes the number of judgeships for each district and appellate court.
The official decision of a court finally resolving the dispute between the parties to the lawsuit.
The policy-making entity for the federal court system. A 27-judge body whose presiding officer is the Chief Justice of the United States.
The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.
The study of law and the structure of the legal system
The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact. See also grand jury.
A judge's directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.
A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.
A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.
A creditor's claim for a fixed amount of money.
The sale of a debtor's property with the proceeds to be used for the benefit of creditors.
A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
A judicial officer of a district court who conducts initial proceedings in criminal cases, decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters on behalf of district judges, and decides civil cases with the consent of the parties.
Section 707(b)(2) of the Bankruptcy Code applies a "means test" to determine whether an individual debtor's chapter 7 filing is presumed to be an abuse of the Bankruptcy Code requiring dismissal or conversion of the case (generally to chapter 13). Abuse is presumed if the debtor's aggregate current monthly income (see definition above) over 5 years, net of certain statutorily allowed expenses is more than (i) $10,000, or (ii) 25% of the debtor's nonpriority unsecured debt, as long as that amount is at least $6,000. The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income.
Special condition the court imposes to require an individual to undergo evaluation and treatment for a mental disorder. Treatment may include psychiatric, psychological, and sex offense-specific evaluations, inpatient or outpatient counseling, and medication.
An offense punishable by one year of imprisonment or less. See also felony.
An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.
Not subject to a court ruling because the controversy has not actually arisen, or has ended
A request by a litigant to a judge for a decision on an issue relating to the case.
A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.
A request by a creditor to allow the creditor to take action against the debtor or the debtor's property that would otherwise be prohibited by the automatic stay.
A Chapter 7 case in which there are no assets available to satisfy any portion of the creditors' unsecured claims.
No contest. A plea of nolo contendere has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
A debt that cannot be eliminated in bankruptcy. Examples include a home mortgage, debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. Some debts, such as debts for money or property obtained by false pretenses and debts for fraud or defalcation while acting in a fiduciary capacity may be declared nondischargeable only if a creditor timely files and prevails in a nondischargeability action.
Property of a debtor that can be liquidated to satisfy claims of creditors.
A trustee's or creditor's objection to the debtor being released from personal liability for certain dischargeable debts. Common reasons include allegations that the debt to be discharged was incurred by false pretenses or that debt arose because of the debtor's fraud while acting as a fiduciary.
A trustee's or creditor's objection to the debtor's attempt to claim certain property as exempt from liquidation by the trustee to creditors.
A judge's written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent.
An opportunity for lawyers to summarize their position before the court and also to answer the judges' questions.
1. In appellate cases, a group of judges (usually three) assigned to decide the case; 2. In the jury selection process, the group of potential jurors; 3. The list of attorneys who are both available and qualified to serve as court-appointed counsel for criminal defendants who cannot afford their own counsel.
The release of a prison inmate – granted by the U.S. Parole Commission – after the inmate has completed part of his or her sentence in a federal prison. When the parolee is released to the community, he or she is placed under the supervision of a U.S. probation officer.
The Sentencing Reform Act of 1984 abolished parole in favor of a determinate sentencing system in which the sentence is set by sentencing guidelines. Now, without the option of parole, the term of imprisonment the court imposes is the actual time the person spends in prison.
A party who has standing to be heard by the court in a matter to be decided in the bankruptcy case. The debtor, U.S. trustee or bankruptcy administrator, case trustee, and creditors are parties in interest for most matters.
Latin, meaning "for the court." In appellate courts, often refers to an unsigned opinion.
A district court may grant each side in a civil or criminal trial the right to exclude a certain number of prospective jurors without cause or giving a reason.
A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil juries consist of at least six persons.
The document that initiates the filing of a bankruptcy proceeding, setting forth basic information regarding the debtor, including name, address, chapter under which the case is filed, and estimated amount of assets and liabilities.
A business not authorized to practice law that prepares bankruptcy petitions.
A federal misdemeanor punishable by six months or less in prison.
A person or business that files a formal complaint with the court.
In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges. See also nolo contendere.
Written statements filed with the court that describe a party's legal or factual assertions about the case.
A transfer of the debtor's property made after the commencement of the case.
The arrangement (or rearrangement) of a debtor's property to allow the debtor to take maximum advantage of exemptions. (Prebankruptcy planning typically includes converting nonexempt assets into exempt assets.)
A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally "follow precedent" - meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.
A debt payment made to a creditor in the 90-day period before a debtor files bankruptcy (or within one year if the creditor was an insider) that gives the creditor more than the creditor would receive in the debtor's chapter 7 case.
A report prepared by a court's probation officer, after a person has been convicted of an offense, summarizing for the court the background information needed to determine the appropriate sentence.
A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.
A function of the federal courts that takes place at the very start of the criminal justice process – after a person has been arrested and charged with a federal crime and before he or she goes to trial. Pretrial services officers focus on investigating the backgrounds of these persons to help the court determine whether to release or detain them while they await trial. The decision is based on whether these individuals are likely to flee or pose a threat to the community. If the court orders release, a pretrial services officer supervises the person in the community until he or she returns to court.
The Bankruptcy Code's statutory ranking of unsecured claims that determines the order in which unsecured claims will be paid if there is not enough money to pay all unsecured claims in full.
An unsecured claim that is entitled to be paid ahead of other unsecured claims that are not entitled to priority status. Priority refers to the order in which these unsecured claims are to be paid.
A slang expression sometimes used to refer to a pro se litigant. It is a corruption of the Latin phrase "in propria persona."
Representing oneself. Serving as one's own lawyer.
Sentencing option in the federal courts. With probation, instead of sending an individual to prison, the court releases the person to the community and orders him or her to complete a period of supervision monitored by a U.S. probation officer and to abide by certain conditions.
Officers of the probation office of a court. Probation officer duties include conducting presentence investigations, preparing presentence reports on convicted defendants, and supervising released defendants.
The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.
A written statement describing the reason a debtor owes a creditor money, which typically sets forth the amount of money owed. (There is an official form for this purpose.)
All legal or equitable interests of the debtor in property as of the commencement of the case.
To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government
An agreement by a debtor to continue paying a dischargeable debt after the bankruptcy, usually for the purpose of keeping collateral or mortgaged property that would otherwise be subject to repossession.
A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.
A procedure in a Chapter 7 case whereby a debtor removes a secured creditor's lien on collateral by paying the creditor the value of the property. The debtor may then retain the property.
The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.
A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.
Lists submitted by the debtor along with the petition (or shortly thereafter) showing the debtor's assets, liabilities, and other financial information. (There are official forms a debtor must use.)
A secured creditor is an individual or business that holds a claim against the debtor that is secured by a lien on property of the estate. The property subject to the lien is the secured creditor's collateral.
Debt backed by a mortgage, pledge of collateral, or other lien; debt for which the creditor has the right to pursue specific pledged property upon default. Examples include home mortgages, auto loans and tax liens.
A federal judge who, after attaining the requisite age and length of judicial experience, takes senior status, thus creating a vacancy among a court's active judges. A senior judge retains the judicial office and may cut back his or her workload by as much as 75 percent, but many opt to keep a larger caseload.
The punishment ordered by a court for a defendant convicted of a crime.
A set of rules and principles established by the United States Sentencing Commission that trial judges use to determine the sentence for a convicted defendant.
To separate. Sometimes juries are sequestered from outside influences during their deliberations.
The delivery of writs or summonses to the appropriate party.
Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party's claims, but usually do not include the admission of fault.
A special type of chapter 11 case in which there is no creditors' committee (or the creditors' committee is deemed inactive by the court) and in which the debtor is subject to more oversight by the U.S. trustee than other chapter 11 debtors. The Bankruptcy Code contains certain provisions designed to reduce the time a small business debtor is in bankruptcy.
Degree of proof required. In criminal cases, prosecutors must prove a defendant's guilt "beyond a reasonable doubt." The majority of civil lawsuits require proof "by a preponderance of the evidence" (50 percent plus), but in some the standard is higher and requires "clear and convincing" proof.
A series of questions the debtor must answer in writing concerning sources of income, transfers of property, lawsuits by creditors, etc. (There is an official form a debtor must use.)
A declaration made by a chapter 7 debtor concerning plans for dealing with consumer debts that are secured by property of the estate.
A law passed by a legislature.
The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.
Latin, meaning "of its own will." Often refers to a court taking an action in a case without being asked to do so by either side.
The act or process by which a person's rights or claims are ranked below those of others.
A command, issued under a court's authority, to a witness to appear and give testimony.
A command to a witness to appear and produce documents.
Akin to a preliminary injunction, it is a judge's short-term order forbidding certain actions until a full hearing can be conducted. Often referred to as a TRO.
Evidence presented orally by witnesses during trials or before grand juries.
See statute of limitations.
A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.
A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition
Any mode or means by which a debtor disposes of or parts with his/her property.
The representative of the bankruptcy estate who exercises statutory powers, principally for the benefit of the unsecured creditors, under the general supervision of the court and the direct supervision of the U.S. trustee or bankruptcy administrator. The trustee is a private individual or corporation appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter 11 cases. The trustee's responsibilities include reviewing the debtor's petition and schedules and bringing actions against creditors or the debtor to recover property of the bankruptcy estate. In chapter 7, the trustee liquidates property of the estate, and makes distributions to creditors. Trustees in chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional responsibilities of overseeing the debtor's plan, receiving payments from debtors, and disbursing plan payments to creditors.
A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government. The U.S. Attorney employs a staff of Assistant U.S. Attorneys who appear as the government's attorneys in individual cases.
An officer of the U.S. Department of Justice responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors' committees; monitoring fee applications; and performing other statutory duties.
A debt secured by property that is worth less than the amount of the debt.
The most widely used test for evaluating undue hardship in the dischargeability of a student loan includes three conditions: (1) the debtor cannot maintain – based on current income and expenses – a minimal standard of living if forced to repay the loans; (2) there are indications that the state of affairs is likely to persist for a significant portion of the repayment period; and (3) the debtor made good faith efforts to repay the loans.
A lawsuit brought by a landlord against a tenant to evict the tenant from rental property – usually for nonpayment of rent.
A claim for which a specific value has not been determined.
A debt that should have been listed by the debtor in the schedules filed with the court but was not. (Depending on the circumstances, an unscheduled debt may or may not be discharged.)
A claim or debt for which a creditor holds no special assurance of payment, such as a mortgage or lien; a debt for which credit was extended based solely upon the creditor's assessment of the debtor's future ability to pay.
The appellate court agrees with the lower court decision and allows it to stand. See affirmed.
The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.
The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.
A transfer of a debtor's property with the debtor's consent.
A nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject to his or her claim the future wages of a debtor. In other words, the creditor seeks to have part of the debtor's future wages paid to the creditor for a debt owed to the creditor.
Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.
A person called upon by either side in a lawsuit to give testimony before the court or jury.
A written court order directing a person to take, or refrain from taking, a certain act.
An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.
Chapter 1 Introduction to Law and Legal Systems
After reading this chapter, you should be able to do the following:
- Distinguish different philosophies of law—schools of legal thought—and explain their relevance.
- Identify the various aims that a functioning legal system can serve.
- Explain how politics and law are related.
- Identify the sources of law and which laws have priority over other laws.
- Understand some basic differences between the US legal system and other legal systems.
Law has different meanings as well as different functions. Philosophers have considered issues of justice and law for centuries, and several different approaches, or schools of legal thought, have emerged. In this chapter, we will look at those different meanings and approaches and will consider how social and political dynamics interact with the ideas that animate the various schools of legal thought. We will also look at typical sources of “positive law” in the United States and how some of those sources have priority over others, and we will set out some basic differences between the US legal system and other legal systems.
1.1 What Is Law?
Law is a word that means different things at different times. Black’s Law Dictionary says that law is “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.” Black’s Law Dictionary , 6th ed., s.v. “law.”
Functions of the Law
In a nation, the law can serve to (1) keep the peace, (2) maintain the status quo, (3) preserve individual rights, (4) protect minorities against majorities, (5) promote social justice, and (6) provide for orderly social change. Some legal systems serve these purposes better than others. Although a nation ruled by an authoritarian government may keep the peace and maintain the status quo, it may also oppress minorities or political opponents (e.g., Burma, Zimbabwe, or Iraq under Saddam Hussein). Under colonialism, European nations often imposed peace in countries whose borders were somewhat arbitrarily created by those same European nations. Over several centuries prior to the twentieth century, empires were built by Spain, Portugal, Britain, Holland, France, Germany, Belgium, and Italy. With regard to the functions of the law, the empire may have kept the peace—largely with force—but it changed the status quo and seldom promoted the native peoples’ rights or social justice within the colonized nation.
In nations that were former colonies of European nations, various ethnic and tribal factions have frequently made it difficult for a single, united government to rule effectively. In Rwanda, for example, power struggles between Hutus and Tutsis resulted in genocide of the Tutsi minority. (Genocide is the deliberate and systematic killing or displacement of one group of people by another group. In 1948, the international community formally condemned the crime of genocide.) In nations of the former Soviet Union, the withdrawal of a central power created power vacuums that were exploited by ethnic leaders. When Yugoslavia broke up, the different ethnic groups—Croats, Bosnians, and Serbians—fought bitterly for home turf rather than share power. In Iraq and Afghanistan, the effective blending of different groups of families, tribes, sects, and ethnic groups into a national governing body that shares power remains to be seen.
Law and Politics
In the United States, legislators, judges, administrative agencies, governors, and presidents make law, with substantial input from corporations, lobbyists, and a diverse group of nongovernment organizations (NGOs) such as the American Petroleum Institute, the Sierra Club, and the National Rifle Association. In the fifty states, judges are often appointed by governors or elected by the people. The process of electing state judges has become more and more politicized in the past fifteen years, with growing campaign contributions from those who would seek to seat judges with similar political leanings.
In the federal system, judges are appointed by an elected official (the president) and confirmed by other elected officials (the Senate). If the president is from one party and the other party holds a majority of Senate seats, political conflicts may come up during the judges’ confirmation processes. Such a division has been fairly frequent over the past fifty years.
In most nation-states The basic entities that comprise the international legal system. Countries , states , and nations are all roughly synonymous. State can also be used to designate the basic units of federally united states, such as in the United States of America, which is a nation-state. (as countries are called in international law), knowing who has power to make and enforce the laws is a matter of knowing who has political power; in many places, the people or groups that have military power can also command political power to make and enforce the laws. Revolutions are difficult and contentious, but each year there are revolts against existing political-legal authority; an aspiration for democratic rule, or greater “rights” for citizens, is a recurring theme in politics and law.
Law is the result of political action, and the political landscape is vastly different from nation to nation. Unstable or authoritarian governments often fail to serve the principal functions of law.
- Consider Burma (named Myanmar by its military rulers). What political rights do you have that the average Burmese citizen does not?
- What is a nongovernment organization, and what does it have to do with government? Do you contribute to (or are you active in) a nongovernment organization? What kind of rights do they espouse, what kind of laws do they support, and what kind of laws do they oppose?
1.2 Schools of Legal Thought
- Explain why natural law relates to the rights that the founders of the US political-legal system found important.
- Describe legal positivism and explain how it differs from natural law.
- Differentiate critical legal studies and ecofeminist legal perspectives from both natural law and legal positivist perspectives.
There are different schools (or philosophies) concerning what law is all about. Philosophy of law is also called jurisprudence The philosophy of law. There are many philosophies of law and thus many different jurisprudential views. , and the two main schools are legal positivism A jurisprudence that focuses on the law as it is—the command of the sovereign. and natural law A jurisprudence that emphasizes a law that transcends positive laws (human laws) and points to a set of principles that are universal in application. . Although there are others (see Section 1.2.3 "Other Schools of Legal Thought" ), these two are the most influential in how people think about the law.
Legal Positivism: Law as Sovereign Command
As legal philosopher John Austin concisely put it, “Law is the command of a sovereign.” Law is only law, in other words, if it comes from a recognized authority and can be enforced by that authority, or sovereign The authority within any nation-state. Sovereignty is what sovereigns exercise. This usually means the power to make and enforce laws within the nation-state. —such as a king, a president, or a dictator—who has power within a defined area or territory. Positivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile. But what are we to make of the social phenomena of laws?
We could examine existing statutes Legislative directives, having the form of general rules that are to be followed in the nation-state or its subdivisions. Statutes are controlling over judicial decisions or common law, but are inferior to (and controlled by) constitutional law. —executive orders, regulations, or judicial decisions—in a fairly precise way to find out what the law says. For example, we could look at the posted speed limits on most US highways and conclude that the “correct” or “right” speed is no more than fifty-five miles per hour. Or we could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude that sixty-one miles per hour is generally allowed by most state troopers, but that occasionally someone gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour zone. Either approach is empirical, even if not rigorously scientific. The first approach, examining in a precise way what the rule itself says, is sometimes known as the “positivist” school of legal thought. The second approach—which relies on social context and the actual behavior of the principal actors who enforce the law—is akin to the “legal realist” school of thought (see Section 1.2.3 "Other Schools of Legal Thought" ).
Positivism has its limits and its critics. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children below a certain age be killed. Because it was the command of a sovereign, the decree was carried out (or, in legal jargon, the decree was “executed”). Suppose a group seizes power in a particular place and commands that women cannot attend school and can only be treated medically by women, even if their condition is life-threatening and women doctors are few and far between. Suppose also that this command is carried out, just because it is the law and is enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out. To avoid the law’s impact, a citizen would have to flee the country entirely. During the Taliban rule in Afghanistan, from which this example is drawn, many did flee.
The positive-law school of legal thought would recognize the lawmaker’s command as legitimate; questions about the law’s morality or immorality would not be important. In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law.
The natural-law school of thought emphasizes that law should be based on a universal moral order. Natural law was “discovered” by humans through the use of reason and by choosing between that which is good and that which is evil. Here is the definition of natural law according to the Cambridge Dictionary of Philosophy : “Natural law, also called the law of nature in moral and political philosophy, is an objective norm or set of objective norms governing human behavior, similar to the positive laws of a human ruler, but binding on all people alike and usually understood as involving a superhuman legislator.” Cambridge Dictionary of Philosophy , s.v. “natural law.”
Both the US Constitution and the United Nations (UN) Charter have an affinity for the natural-law outlook, as it emphasizes certain objective norms and rights of individuals and nations. The US Declaration of Independence embodies a natural-law philosophy. The following short extract should provide some sense of the deep beliefs in natural law held by those who signed the document.
The Unanimous Declaration of the Thirteen United States of America
July 4, 1776
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.…
The natural-law school has been very influential in American legal thinking. The idea that certain rights, for example, are “unalienable” (as expressed in the Declaration of Independence and in the writings of John Locke) is consistent with this view of the law. Individuals may have “God-given” or “natural” rights that government cannot legitimately take away. Government only by consent of the governed is a natural outgrowth of this view.
Civil disobedience—in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.—becomes a matter of morality over “unnatural” law. For example, in his “Letter from Birmingham Jail,” Martin Luther King Jr. claims that obeying an unjust law is not moral and that deliberately disobeying an unjust law is in fact a moral act that expresses “the highest respect for law”: “An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.…One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.” Martin Luther King Jr., “Letter from Birmingham Jail.”
Legal positivists, on the other hand, would say that we cannot know with real confidence what “natural” law or “universal” law is. In studying law, we can most effectively learn by just looking at what the written law says, or by examining how it has been applied. In response, natural-law thinkers would argue that if we care about justice, every law and every legal system must be held accountable to some higher standard, however hard that may be to define.
It is easier to know what the law “is” than what the law “should be.” Equal employment laws, for example, have specific statutes, rules, and decisions about racial discrimination. There are always difficult issues of interpretation and decision, which is why courts will resolve differing views. But how can we know the more fundamental “ought” or “should” of human equality? For example, how do we know that “all men are created equal” (from the Declaration of Independence)? Setting aside for the moment questions about the equality of women, or that of slaves, who were not counted as men with equal rights at the time of the declaration—can the statement be empirically proven, or is it simply a matter of a priori knowledge? ( A priori means “existing in the mind prior to and independent of experience.”) Or is the statement about equality a matter of faith or belief, not really provable either scientifically or rationally? The dialogue between natural-law theorists and more empirically oriented theories of “what law is” will raise similar questions. In this book, we will focus mostly on the law as it is, but not without also raising questions about what it could or should be.
Other Schools of Legal Thought
The historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments.
The legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or modernized in order to remain current. The social context of law was more important to legal realists than the formal application of precedent to current or future legal disputes. Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and would give legal decisions based on their beliefs and their own social context.
The legal realist view influenced the emergence of the critical legal studies (CLS) school of thought. The “Crits” believe that the social order (and the law) is dominated by those with power, wealth, and influence. Some Crits are clearly influenced by the economist Karl Marx and also by distributive justice theory (see Chapter 2 "Corporate Social Responsibility and Business Ethics" ). The CLS school believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. In so doing, the wealthy have perpetuated an unjust distribution of both rights and goods in society. Law is politics and is thus not neutral or value-free. The CLS movement would use the law to overturn the hierarchical structures of domination in the modern society.
Related to the CLS school, yet different, is the ecofeminist school of legal thought. This school emphasizes—and would modify—the long-standing domination of men over both women and the rest of the natural world. Ecofeminists would say that the same social mentality that leads to exploitation of women is at the root of man’s exploitation and degradation of the natural environment. They would say that male ownership of land has led to a “dominator culture,” in which man is not so much a steward of the existing environment or those “subordinate” to him but is charged with making all that he controls economically “productive.” Wives, children, land, and animals are valued as economic resources, and legal systems (until the nineteenth century) largely conferred rights only to men with land. Ecofeminists would say that even with increasing civil and political rights for women (such as the right to vote) and with some nations’ recognizing the rights of children and animals and caring for the environment, the legacy of the past for most nations still confirms the preeminence of “man” and his dominance of both nature and women.
Each of the various schools of legal thought has a particular view of what a legal system is or what it should be. The natural-law theorists emphasize the rights and duties of both government and the governed. Positive law takes as a given that law is simply the command of a sovereign, the political power that those governed will obey. Recent writings in the various legal schools of thought emphasize long-standing patterns of domination of the wealthy over others (the CLS school) and of men over women (ecofeminist legal theory).
- Vandana Shiva draws a picture of a stream in a forest. She says that in our society the stream is seen as unproductive if it is simply there, fulfilling the need for water of women’s families and communities, until engineers come along and tinker with it, perhaps damming it and using it for generating hydropower. The same is true of a forest, unless it is replaced with a monoculture plantation of a commercial species. A forest may very well be productive—protecting groundwater; creating oxygen; providing fruit, fuel, and craft materials for nearby inhabitants; and creating a habitat for animals that are also a valuable resource. She criticizes the view that if there is no monetary amount that can contribute to gross domestic product, neither the forest nor the river can be seen as a productive resource. Which school of legal thought does her criticism reflect?
- Anatole France said, “The law, in its majesty, forbids rich and poor alike from sleeping under bridges.” Which school of legal thought is represented by this quote?
- Adolf Eichmann was a loyal member of the National Socialist Party in the Third Reich and worked hard under Hitler’s government during World War II to round up Jewish people for incarceration—and eventual extermination—at labor camps like Auschwitz and Buchenwald. After an Israeli “extraction team” took him from Argentina to Israel, he was put on trial for “crimes against humanity.” His defense was that he was “just following orders.” Explain why Eichmann was not an adherent of the natural-law school of legal thought.
1.3 Basic Concepts and Categories of US Positive Law
- In a general way, differentiate contract law from tort law.
- Consider the role of law in supporting ethical norms in our society.
- Understand the differing roles of state law and federal law in the US legal system.
- Know the difference between criminal cases and civil cases.
Most of what we discuss in this book is positive law—US positive law in particular. We will also consider the laws and legal systems of other nations. But first, it will be useful to cover some basic concepts and distinctions.
Law: The Moral Minimums in a Democratic Society
The law does not correct (or claim to correct) every wrong that occurs in society. At a minimum, it aims to curb the worst kind of wrongs, the kinds of wrongs that violate what might be called the “moral minimums” that a community demands of its members. These include not only violations of criminal law (see Chapter 6 "Criminal Law" ) but also torts (see Chapter 7 "Introduction to Tort Law" ) and broken promises (see Chapter 8 "Introduction to Contract Law" ). Thus it may be wrong to refuse to return a phone call from a friend, but that wrong will not result in a viable lawsuit against you. But if a phone (or the Internet) is used to libel or slander someone, a tort has been committed, and the law may allow the defamed person to be compensated.
There is a strong association between what we generally think of as ethical behavior and what the laws require and provide. For example, contract law upholds society’s sense that promises—in general—should be kept. Promise-breaking is seen as unethical. The law provides remedies for broken promises (in breach of contract cases) but not for all broken promises; some excuses are accepted when it would be reasonable to do so. For tort law, harming others is considered unethical. If people are not restrained by law from harming one another, orderly society would be undone, leading to anarchy. Tort law provides for compensation when serious injuries or harms occur. As for property law issues, we generally believe that private ownership of property is socially useful and generally desirable, and it is generally protected (with some exceptions) by laws. You can’t throw a party at my house without my permission, but my right to do whatever I want on my own property may be limited by law; I can’t, without the public’s permission, operate an incinerator on my property and burn heavy metals, as toxic ash may be deposited throughout the neighborhood.
The Common Law: Property, Torts, and Contracts
Even before legislatures met to make rules for society, disputes happened and judges decided them. In England, judges began writing down the facts of a case and the reasons for their decision. They often resorted to deciding cases on the basis of prior written decisions. In relying on those prior decisions, the judge would reason that since a current case was pretty much like a prior case, it ought to be decided the same way. This is essentially reasoning by analogy. Thus the use of precedent A prior judicial decision that is either binding or persuasive, and as such, provides a rule useful in making a decision in the case at hand. in common-law cases came into being, and a doctrine of stare decisis Latin, for “let the decision stand.” By keeping within the rule of a prior judicial decision, a court follows “precedent” by letting the prior decision govern the result in the case at hand. (pronounced STAR-ay-de-SIGH-sus) became accepted in English courts. Stare decisis means, in Latin, “let the decision stand.”
Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas of law—property, contract, or tort. Property law deals with the rights and duties of those who can legally own land (real property), how that ownership can be legally confirmed and protected, how property can be bought and sold, what the rights of tenants (renters) are, and what the various kinds of “estates” in land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with what kinds of promises courts should enforce. For example, should courts enforce a contract where one of the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract.
The thirteen original colonies had been using English common law for many years, and they continued to do so after independence from England. Early cases from the first states are full of references to already-decided English cases. As years went by, many precedents were established by US state courts, so that today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is quite rare.
Courts in one state may look to common-law decisions from the courts of other states where the reasoning in a similar case is persuasive. This will happen in “cases of first impression,” a fact pattern or situation that the courts in one state have never seen before. But if the supreme court in a particular state has already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by their highest court.
State Courts and the Domain of State Law
In the early years of our nation, federal courts were not as active or important as state courts. States had jurisdiction (the power to make and enforce laws) over the most important aspects of business life. The power of state law has historically included governing the following kinds of issues and claims:
- Contracts, including sales, commercial paper, letters of credit, and secured transactions
- Property, including real property, bailments of personal property (such as when you check your coat at a theater or leave your clothes with a dry cleaner), trademarks, copyrights, and the estates of decedents (dead people)
- Domestic matters, including marriage, divorce, custody, adoption, and visitation
- Securities law
- Environmental law
- Agency law, governing the relationship between principals and their agents.
Over the past eighty years, however, federal law has become increasingly important in many of these areas, including banking, securities, and environmental law.
Civil versus Criminal Cases
Most of the cases we will look at in this textbook are civil cases. Criminal cases are certainly of interest to business, especially as companies may break criminal laws. A criminal case involves a governmental decision—whether state or federal—to prosecute someone (named as a defendant) for violating society’s laws. The law establishes a moral minimum and does so especially in the area of criminal laws; if you break a criminal law, you can lose your freedom (in jail) or your life (if you are convicted of a capital offense). In a civil action, you would not be sent to prison; in the worst case, you can lose property (usually money or other assets), such as when Ford Motor Company lost a personal injury case and the judge awarded $295 million to the plaintiffs or when Pennzoil won a $10.54 billion verdict against Texaco (see Chapter 7 "Introduction to Tort Law" ).
Some of the basic differences between civil law In contrast to criminal law, the law that governs noncriminal disputes, such as in lawsuits (as opposed to prosecutions) over contract disputes and tort claims. In contrast to common law, civil law is part of the continental European tradition dating back to Roman law. and criminal law That body of law in any nation-state that defines offenses against society as a whole, punishable by fines, forfeitures, or imprisonment. cases are illustrated in Table 1.1 "Differences between Civil and Criminal Cases" .
Table 1.1 Differences between Civil and Criminal Cases
Regarding plaintiffs and prosecutors, you can often tell a civil case from a criminal case by looking at the caption of a case going to trial. If the government appears first in the caption of the case (e.g., U.S. v. Lieberman , it is likely that the United States is prosecuting on behalf of the people. The same is true of cases prosecuted by state district attorneys (e.g., State v. Seidel ). But this is not a foolproof formula. Governments will also bring civil actions to collect debts from or settle disputes with individuals, corporations, or other governments. Thus U.S. v. Mayer might be a collection action for unpaid taxes, or U.S. v. Canada might be a boundary dispute in the International Court of Justice. Governments can be sued, as well; people occasionally sue their state or federal government, but they can only get a trial if the government waives its sovereign immunity and allows such suits. Warner v. U.S. , for example, could be a claim for a tax refund wrongfully withheld or for damage caused to the Warner residence by a sonic boom from a US Air Force jet flying overhead.
Substance versus Procedure
Many rules and regulations in law are substantive, and others are procedural. We are used to seeing laws as substantive; that is, there is some rule of conduct or behavior that is called for or some action that is proscribed (prohibited). The substantive rules tell us how to act with one another and with the government. For example, all of the following are substantive rules of law and provide a kind of command or direction to citizens:
- Drive not more than fifty-five miles per hour where that speed limit is posted.
- Do not conspire to fix prices with competitors in the US market.
- Do not falsely represent the curative effects of your over-the-counter herbal remedy.
- Do not drive your motor vehicle through an intersection while a red traffic signal faces the direction you are coming from.
- Do not discriminate against job applicants or employees on the basis of their race, sex, religion, or national origin.
- Do not discharge certain pollutants into the river without first getting a discharge permit.
In contrast, procedural laws are the rules of courts and administrative agencies. They tell us how to proceed if there is a substantive-law problem. For example, if you drive fifty-three miles per hour in a forty mile-per-hour zone on Main Street on a Saturday night and get a ticket, you have broken a substantive rule of law (the posted speed limit). Just how and what gets decided in court is a matter of procedural law. Is the police officer’s word final, or do you get your say before a judge? If so, who goes first, you or the officer? Do you have the right to be represented by legal counsel? Does the hearing or trial have to take place within a certain time period? A week? A month? How long can the state take to bring its case? What kinds of evidence will be relevant? Radar? (Does it matter what kind of training the officer has had on the radar device? Whether the radar device had been tested adequately?) The officer’s personal observation? (What kind of training has he had, how is he qualified to judge the speed of a car, and other questions arise.) What if you unwisely bragged to a friend at a party recently that you went a hundred miles an hour on Main Street five years ago at half past three on a Tuesday morning? (If the prosecutor knows of this and the “friend” is willing to testify, is it relevant to the charge of fifty-three in a forty-mile-per-hour zone?)
In the United States, all state procedural laws must be fair, since the due process clause of the Fourteenth Amendment directs that no state shall deprive any citizen of “life, liberty, or property,” without due process of law. (The $200 fine plus court costs is designed to deprive you of property, that is, money, if you violate the speed limit.) Federal laws must also be fair, because the Fifth Amendment to the US Constitution has the exact same due process language as the Fourteenth Amendment. This suggests that some laws are more powerful or important than others, which is true. The next section looks at various types of positive law and their relative importance.
In most legal systems, like that in the United States, there is a fairly firm distinction between criminal law (for actions that are offenses against the entire society) and civil law (usually for disputes between individuals or corporations). Basic ethical norms for promise-keeping and not harming others are reflected in the civil law of contracts and torts. In the United States, both the states and the federal government have roles to play, and sometimes these roles will overlap, as in environmental standards set by both states and the federal government.
- Jenna gets a ticket for careless driving after the police come to investigate a car accident she had with you on Hanover Boulevard. Your car is badly damaged through no fault of your own. Is Jenna likely to face criminal charges, civil charges, or both?
- Jenna’s ticket says that she has thirty days in which to respond to the charges against her. The thirty days conforms to a state law that sets this time limit. Is the thirty-day limit procedural law or substantive law?
1.4 Sources of Law and Their Priority
- Describe the different sources of law in the US legal system and the principal institutions that create those laws.
- Explain in what way a statute is like a treaty, and vice versa.
- Explain why the Constitution is “prior” and has priority over the legislative acts of a majority, whether in the US Congress or in a state legislature.
- Describe the origins of the common-law system and what common law means.
Sources of Law
In the United States today, there are numerous sources of law. The main ones are (1) constitutions—both state and federal, (2) statutes and agency regulations, and (3) judicial decisions. In addition, chief executives (the president and the various governors) can issue executive orders that have the effect of law.
In international legal systems, sources of law include treaties Formal agreements concluded between nation-states. (agreements between states or countries) and what is known as customary international law (usually consisting of judicial decisions from national court systems where parties from two or more nations are in a dispute).
As you might expect, these laws sometimes conflict: a state law may conflict with a federal law, or a federal law might be contrary to an international obligation. One nation’s law may provide one substantive rule, while another nation’s law may provide a different, somewhat contrary rule to apply. Not all laws, in other words, are created equal. To understand which laws have priority, it is essential to understand the relationships between the various kinds of law.
Constitutions The founding documents of any nation-state’s legal system. are the foundation for a state or nation’s other laws, providing the country’s legislative, executive, and judicial framework. Among the nations of the world, the United States has the oldest constitution still in use. It is difficult to amend, which is why there have only been seventeen amendments following the first ten in 1789; two-thirds of the House and Senate must pass amendments, and three-fourths of the states must approve them.
The nation’s states also have constitutions. Along with providing for legislative, executive, and judicial functions, state constitutions prescribe various rights of citizens. These rights may be different from, and in addition to, rights granted by the US Constitution. Like statutes and judicial decisions, a constitution’s specific provisions can provide people with a “cause of action” on which to base a lawsuit (see Section 1.4.3 "Causes of Action, Precedent, and " on “causes of action”). For example, California’s constitution provides that the citizens of that state have a right of privacy. This has been used to assert claims against businesses that invade an employee’s right of privacy. In the case of Virginia Rulon-Miller, her employer, International Business Machines (IBM), told her to stop dating a former colleague who went to work for a competitor. When she refused, IBM terminated her, and a jury fined the company for $300,000 in damages. As the California court noted, “While an employee sacrifices some privacy rights when he enters the workplace, the employee’s privacy expectations must be balanced against the employer’s interests.…[T]he point here is that privacy, like the other unalienable rights listed first in our Constitution…is unquestionably a fundamental interest of our society.” Rulon-Miller v. International Business Machines Corp. , 162 Cal. App.3d 241, 255 (1984).
Statutes and Treaties in Congress
In Washington, DC, the federal legislature is known as Congress and has both a House of Representatives and a Senate. The House is composed of representatives elected every two years from various districts in each state. These districts are established by Congress according to population as determined every ten years by the census, a process required by the Constitution. Each state has at least one district; the most populous state (California) has fifty-two districts. In the Senate, there are two senators from each state, regardless of the state’s population. Thus Delaware has two senators and California has two senators, even though California has far more people. Effectively, less than 20 percent of the nation’s population can send fifty senators to Washington.
Many consider this to be antidemocratic. The House of Representatives, on the other hand, is directly proportioned by population, though no state can have less than one representative.
Each Congressional legislative body has committees for various purposes. In these committees, proposed bills are discussed, hearings are sometimes held, and bills are either reported out (brought to the floor for a vote) or killed in committee. If a bill is reported out, it may be passed by majority vote. Because of the procedural differences between the House and the Senate, bills that have the same language when proposed in both houses are apt to be different after approval by each body. A conference committee will then be held to try to match the two versions. If the two versions differ widely enough, reconciliation of the two differing versions into one acceptable to both chambers (House and Senate) is more difficult.
If the House and Senate can agree on identical language, the reconciled bill will be sent to the president for signature or veto. The Constitution prescribes that the president will have veto power over any legislation. But the two bodies can override a presidential veto with a two-thirds vote in each chamber.
In the case of treaties, the Constitution specifies that only the Senate must ratify them. When the Senate ratifies a treaty, it becomes part of federal law, with the same weight and effect as a statute passed by the entire Congress. The statutes of Congress are collected in codified form in the US Code. The code is available online at http://uscode.house.gov .
Delegating Legislative Powers: Rules by Administrative Agencies
Congress has found it necessary and useful to create government agencies to administer various laws (see Chapter 5 "Administrative Law" ). The Constitution does not expressly provide for administrative agencies, but the US Supreme Court has upheld the delegation of power to create federal agencies.
Examples of administrative agencies would include the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the Federal Trade Commission (FTC).
It is important to note that Congress does not have unlimited authority to delegate its lawmaking powers to an agency. It must delegate its authority with some guidelines for the agency and cannot altogether avoid its constitutional responsibilities (see Chapter 5 "Administrative Law" ).
Agencies propose rules in the Federal Register, published each working day of the year. Rules that are formally adopted are published in the Code of Federal Regulations , or CFR, available online at http://www.access.gpo.gov/nara/cfr/cfr-table-search.html .
State Statutes and Agencies: Other Codified Law
Statutes are passed by legislatures and provide general rules for society. States have legislatures (sometimes called assemblies), which are usually made up of both a senate and a house of representatives. Like the federal government, state legislatures will agree on the provisions of a bill, which is then sent to the governor (acting like the president for that state) for signature. Like the president, governors often have a veto power. The process of creating and amending, or changing, laws is filled with political negotiation and compromise.
On a more local level, counties and municipal corporations or townships may be authorized under a state’s constitution to create or adopt ordinances. Examples of ordinances include local building codes, zoning laws, and misdemeanors or infractions such as skateboarding or jaywalking. Most of the more unusual laws that are in the news from time to time are local ordinances. For example, in Logan County, Colorado, it is illegal to kiss a sleeping woman; in Indianapolis, Indiana, and Eureka, Nebraska, it is a crime to kiss if you have a mustache. But reportedly, some states still have odd laws here and there. Kentucky law proclaims that every person in the state must take a bath at least once a year, and failure to do so is illegal.
Judicial Decisions: The Common Law
Common law Judicial decisions that do not involve interpretation of statutes, regulations, treaties, or the Constitution. consists of decisions by courts (judicial decisions) that do not involve interpretation of statutes, regulations, treaties, or the Constitution. Courts make such interpretations, but many cases are decided where there is no statutory or other codified law or regulation to be interpreted. For example, a state court deciding what kinds of witnesses are required for a valid will in the absence of a rule (from a statute) is making common law.
United States law comes primarily from the tradition of English common law. By the time England’s American colonies revolted in 1776, English common-law traditions were well established in the colonial courts. English common law was a system that gave written judicial decisions the force of law throughout the country. Thus if an English court delivered an opinion as to what constituted the common-law crime of burglary, other courts would stick to that decision, so that a common body of law developed throughout the country. Common law is essentially shorthand for the notion that a common body of law, based on past written decisions, is desirable and necessary.
In England and in the laws of the original thirteen states, common-law decisions defined crimes such as arson, burglary, homicide, and robbery. As time went on, US state legislatures either adopted or modified common-law definitions of most crimes by putting them in the form of codes or statutes. This legislative ability—to modify or change common law into judicial law—points to an important phenomenon: the priority of statutory law over common law. As we will see in the next section, constitutional law will have priority over statutory law.
Priority of Laws
The constitution as preemptive force in us law.
The US Constitution takes precedence over all statutes and judicial decisions that are inconsistent. For example, if Michigan were to decide legislatively that students cannot speak ill of professors in state-sponsored universities, that law would be void, since it is inconsistent with the state’s obligation under the First Amendment to protect free speech. Or if the Michigan courts were to allow a professor to bring a lawsuit against a student who had said something about him that was derogatory but not defamatory, the state’s judicial system would not be acting according to the First Amendment. (As we will see in Chapter 7 "Introduction to Tort Law" , free speech has its limits; defamation was a cause of action at the time the First Amendment was added to the Constitution, and it has been understood that the free speech rights in the First Amendment did not negate existing common law.)
Statutes and Cases
Statutes generally have priority, or take precedence, over case law (judicial decisions). Under common-law judicial decisions, employers could hire young children for difficult work, offer any wage they wanted, and not pay overtime work at a higher rate. But various statutes changed that. For example, the federal Fair Labor Standards Act (1938) forbid the use of oppressive child labor and established a minimum pay wage and overtime pay rules.
Treaties as Statutes: The “Last in Time” Rule
A treaty or convention is considered of equal standing to a statute. Thus when Congress ratified the North American Free Trade Agreement (NAFTA), any judicial decisions or previous statutes that were inconsistent—such as quotas or limitations on imports from Mexico that were opposite to NAFTA commitments—would no longer be valid. Similarly, US treaty obligations under the General Agreement on Tariffs and Trade (GATT) and obligations made later through the World Trade Organization (WTO) would override previous federal or state statutes.
One example of treaty obligations overriding, or taking priority over, federal statutes was the tuna-dolphin dispute between the United States and Mexico. The Marine Mammal Protection Act amendments in 1988 spelled out certain protections for dolphins in the Eastern Tropical Pacific, and the United States began refusing to allow the importation of tuna that were caught using “dolphin-unfriendly” methods (such as purse seining). This was challenged at a GATT dispute panel in Switzerland, and the United States lost. The discussion continued at the WTO under its dispute resolution process. In short, US environmental statutes can be ruled contrary to US treaty obligations.
Under most treaties, the United States can withdraw, or take back, any voluntary limitation on its sovereignty; participation in treaties is entirely elective. That is, the United States may “unbind” itself whenever it chooses. But for practical purposes, some limitations on sovereignty may be good for the nation. The argument goes something like this: if free trade in general helps the United States, then it makes some sense to be part of a system that promotes free trade; and despite some temporary setbacks, the WTO decision process will (it is hoped) provide far more benefits than losses in the long run. This argument invokes utilitarian theory (that the best policy does the greatest good overall for society) and David Ricardo’s theory of comparative advantage.
Ultimately, whether the United States remains a supporter of free trade and continues to participate as a leader in the WTO will depend upon citizens electing leaders who support the process. Had Ross Perot been elected in 1992, for example, NAFTA would have been politically (and legally) dead during his term of office.
Causes of Action, Precedent, and Stare Decisis
No matter how wrong someone’s actions may seem to you, the only wrongs you can right in a court are those that can be tied to one or more causes of action In a complaint, a legal basis on which a claim is predicated. The legal basis can be a Constitutional law, a statute, a regulation, or a prior judicial decision that creates a precedent to be followed. . Positive law is full of cases, treaties, statutes, regulations, and constitutional provisions that can be made into a cause of action. If you have an agreement with Harold Hill that he will purchase seventy-six trombones from you and he fails to pay for them after you deliver, you will probably feel wronged, but a court will only act favorably on your complaint if you can show that his behavior gives you a cause of action based on some part of your state’s contract law. This case would give you a cause of action under the law of most states; unless Harold Hill had some legal excuse recognized by the applicable state’s contract law—such as his legal incompetence, his being less than eighteen years of age, his being drunk at the time the agreement was made, or his claim that the instruments were trumpets rather than trombones or that they were delivered too late to be of use to him—you could expect to recover some compensation for his breaching of your agreement with him.
An old saying in the law is that the law does not deal in trifles, or unimportant issues (in Latin, de minimis non curat lex ). Not every wrong you may suffer in life will be a cause to bring a court action. If you are stood up for a Saturday night date and feel embarrassed or humiliated, you cannot recover anything in a court of law in the United States, as there is no cause of action (no basis in the positive law) that you can use in your complaint. If you are engaged to be married and your spouse-to-be bolts from the wedding ceremony, there are some states that do provide a legal basis on which to bring a lawsuit. “Breach of promise to marry” is recognized in several states, but most states have abolished this cause of action, either by judicial decision or by legislation. Whether a runaway bride or groom gives rise to a valid cause of action in the courts depends on whether the state courts still recognize and enforce this now-disappearing cause of action.
Your cause of action is thus based on existing laws, including decided cases. How closely your case “fits” with a prior decided case raises the question of precedent.
As noted earlier in this chapter, the English common-law tradition placed great emphasis on precedent and what is called stare decisis. A court considering one case would feel obliged to decide that case in a way similar to previously decided cases. Written decisions of the most important cases had been spread throughout England (the common “realm”), and judges hoped to establish a somewhat predictable, consistent group of decisions.
The English legislature (Parliament) was not in the practice of establishing detailed statutes on crimes, torts, contracts, or property. Thus definitions and rules were left primarily to the courts. By their nature, courts could only decide one case at a time, but in doing so they would articulate holdings, or general rules, that would apply to later cases.
Suppose that one court had to decide whether an employer could fire an employee for no reason at all. Suppose that there were no statutes that applied to the facts: there was no contract between the employer and the employee, but the employee had worked for the employer for many years, and now a younger person was replacing him. The court, with no past guidelines, would have to decide whether the employee had stated a “cause of action” against the employer. If the court decided that the case was not legally actionable, it would dismiss the action. Future courts would then treat similar cases in a similar way. In the process, the court might make a holding that employers could fire employees for any reason or for no reason. This rule could be applied in the future should similar cases come up.
But suppose that an employer fired an employee for not committing perjury (lying on the witness stand in a court proceeding); the employer wanted the employee to cover up the company's criminal or unethical act. Suppose that, as in earlier cases, there were no applicable statutes and no contract of employment. Courts relying on a holding or precedent that “employers may fire employees for any reason or no reason” might rule against an employee seeking compensation for being fired for telling the truth on the witness stand. Or it might make an exception to the general rule, such as, “Employers may generally discharge employees for any reason or for no reason without incurring legal liability; however, employers will incur legal liability for firing an employee who refuses to lie on behalf of the employer in a court proceeding.”
In each case (the general rule and its exception), the common-law tradition calls for the court to explain the reasons for its ruling. In the case of the general rule, “freedom of choice” might be the major reason. In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship might be used as reasons. Because the court’s “reasons” will be persuasive to some and not to others, there is inevitably a degree of subjectivity to judicial opinions. That is, reasonable people will disagree as to the persuasiveness of the reasoning a court may offer for its decision.
Written judicial opinions are thus a good playing field for developing critical thinking skills by identifying the issue in a case and examining the reasons for the court’s previous decision(s), or holding. What has the court actually decided, and why? Remember that a court, especially the US Supreme Court, is not only deciding one particular case but also setting down guidelines (in its holdings) for federal and state courts that encounter similar issues. Note that court cases often raise a variety of issues or questions to be resolved, and judges (and attorneys) will differ as to what the real issue in a case is. A holding is the court’s complete answer to an issue that is critical to deciding the case and thus gives guidance to the meaning of the case as a precedent for future cases.
Beyond the decision of the court, it is in looking at the court’s reasoning that you are most likely to understand what facts have been most significant to the court and what theories (schools of legal thought) each trial or appellate judge believes in. Because judges do not always agree on first principles (i.e., they subscribe to different schools of legal thought), there are many divided opinions in appellate opinions and in each US Supreme Court term.
There are different sources of law in the US legal system. The US Constitution is foundational; US statutory and common law cannot be inconsistent with its provisions. Congress creates statutory law (with the signature of the president), and courts will interpret constitutional law and statutory law. Where there is neither constitutional law nor statutory law, the courts function in the realm of common law. The same is true of law within the fifty states, each of which also has a constitution, or foundational law.
Both the federal government and the states have created administrative agencies. An agency only has the power that the legislature gives it. Within the scope of that power, an agency will often create regulations (see Chapter 5 "Administrative Law" ), which have the same force and effect as statutes. Treaties are never negotiated and concluded by states, as the federal government has exclusive authority over relations with other nation-states. A treaty, once ratified by the Senate, has the same force and effect as a statute passed by Congress and signed into law by the president.
Constitutions, statutes, regulations, treaties, and court decisions can provide a legal basis in the positive law. You may believe you have been wronged, but for you to have a right that is enforceable in court, you must have something in the positive law that you can point to that will support a cause of action against your chosen defendant.
- Give one example of where common law was overridden by the passage of a federal statute.
- How does common law change or evolve without any action on the part of a legislature?
- Lindsey Paradise is not selected for her sorority of choice at the University of Kansas. She has spent all her time rushing that particular sorority, which chooses some of her friends but not her. She is disappointed and angry and wants to sue the sorority. What are her prospects of recovery in the legal system? Explain.
1.5 Legal and Political Systems of the World
- Describe how the common-law system differs from the civil-law system.
Other legal and political systems are very different from the US system, which came from English common-law traditions and the framers of the US Constitution. Our legal and political traditions are different both in what kinds of laws we make and honor and in how disputes are resolved in court.
Comparing Common-Law Systems with Other Legal Systems
The common-law tradition is unique to England, the United States, and former colonies of the British Empire. Although there are differences among common-law systems (e.g., most nations do not permit their judiciaries to declare legislative acts unconstitutional; some nations use the jury less frequently), all of them recognize the use of precedent in judicial cases, and none of them relies on the comprehensive, legislative codes that are prevalent in civil-law systems.
The main alternative to the common-law legal system was developed in Europe and is based in Roman and Napoleonic law. A civil-law or code-law system is one where all the legal rules are in one or more comprehensive legislative enactments. During Napoleon’s reign, a comprehensive book of laws—a code—was developed for all of France. The code covered criminal law, criminal procedure, noncriminal law and procedure, and commercial law. The rules of the code are still used today in France and in other continental European legal systems. The code is used to resolve particular cases, usually by judges without a jury. Moreover, the judges are not required to follow the decisions of other courts in similar cases. As George Cameron of the University of Michigan has noted, “The law is in the code, not in the cases.” He goes on to note, “Where several cases all have interpreted a provision in a particular way, the French courts may feel bound to reach the same result in future cases, under the doctrine of jurisprudence constante. The major agency for growth and change, however, is the legislature, not the courts.”
Civil-law systems are used throughout Europe as well as in Central and South America. Some nations in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside of Europe, and many of these colonies adopted the legal practices that were imposed on them by colonial rule, much like the original thirteen states of the United States, which adopted English common-law practices.
One source of possible confusion at this point is that we have already referred to US civil law in contrast to criminal law. But the European civil law covers both civil and criminal law.
There are also legal systems that differ significantly from the common-law and civil-law systems. The communist and socialist legal systems that remain (e.g., in Cuba and North Korea) operate on very different assumptions than those of either English common law or European civil law. Islamic and other religion-based systems of law bring different values and assumptions to social and commercial relations.
Legal systems vary widely in their aims and in the way they process civil and criminal cases. Common-law systems use juries, have one judge, and adhere to precedent. Civil-law systems decide cases without a jury, often use three judges, and often render shorter opinions without reference to previously decided cases.
- Use the Internet to identify some of the better-known nations with civil-law systems. Which Asian nations came to adopt all or part of civil-law traditions, and why?
1.6 A Sample Case
Preliminary Note to Students
Title VII of the Civil Rights Act of 1964 is a federal statute that applies to all employers whose workforce exceeds fifteen people. The text of Title VII says that
(a) it shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or natural origin.
At common law—where judges decide cases without reference to statutory guidance—employers were generally free to hire and fire on any basis they might choose, and employees were generally free to work for an employer or quit an employer on any basis they might choose (unless the employer and the employee had a contract). This rule has been called “employment at will.” State and federal statutes that prohibit discrimination on any basis (such as the prohibitions on discrimination because of race, color, religion, sex, or national origin in Title VII) are essentially legislative exceptions to the common-law employment-at-will rule.
In the 1970s, many female employees began to claim a certain kind of sex discrimination: sexual harassment. Some women were being asked to give sexual favors in exchange for continued employment or promotion (quid pro quo sexual harassment) or found themselves in a working environment that put their chances for continued employment or promotion at risk. This form of sexual discrimination came to be called “hostile working environment” sexual harassment.
Notice that the statute itself says nothing about sexual harassment but speaks only in broad terms about discrimination “because of” sex (and four other factors). Having set the broad policy, Congress left it to employees, employers, and the courts to fashion more specific rules through the process of civil litigation.
This is a case from our federal court system, which has a trial or hearing in the federal district court, an appeal to the Sixth Circuit Court of Appeals, and a final appeal to the US Supreme Court. Teresa Harris, having lost at both the district court and the Sixth Circuit Court of Appeals, here has petitioned for a writ of certiorari (asking the court to issue an order to bring the case to the Supreme Court), a petition that is granted less than one out of every fifty times. The Supreme Court, in other words, chooses its cases carefully. Here, the court wanted to resolve a difference of opinion among the various circuit courts of appeal as to whether or not a plaintiff in a hostile-working-environment claim could recover damages without showing “severe psychological injury.”
Harris v. Forklift Systems
510 U.S. 17 (U.S. Supreme Court 1992)
JUDGES: O’CONNOR, J., delivered the opinion for a unanimous Court. SCALIA, J., and GINSBURG, J., filed concurring opinions.
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case we consider the definition of a discriminatorily “abusive work environment” (also known as a “hostile work environment”) under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1988 ed., Supp. III).
Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 until October 1987. Charles Hardy was Forklift’s president.
The Magistrate found that, throughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendoes. Hardy told Harris on several occasions, in the presence of other employees, “You’re a woman, what do you know” and “We need a man as the rental manager”; at least once, he told her she was “a dumbass woman.” Again in front of others, he suggested that the two of them “go to the Holiday Inn to negotiate [Harris’s] raise.” Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendoes about Harris’ and other women’s clothing.
In mid-August 1987, Harris complained to Hardy about his conduct. Hardy said he was surprised that Harris was offended, claimed he was only joking, and apologized. He also promised he would stop, and based on this assurance Harris stayed on the job. But in early September, Hardy began anew: While Harris was arranging a deal with one of Forklift’s customers, he asked her, again in front of other employees, “What did you do, promise the guy…some [sex] Saturday night?” On October 1, Harris collected her paycheck and quit.
Harris then sued Forklift, claiming that Hardy’s conduct had created an abusive work environment for her because of her gender. The United States District Court for the Middle District of Tennessee, adopting the report and recommendation of the Magistrate, found this to be “a close case,” but held that Hardy’s conduct did not create an abusive environment. The court found that some of Hardy’s comments “offended [Harris], and would offend the reasonable woman,” but that they were not “so severe as to be expected to seriously affect [Harris’s] psychological well-being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person’s work performance.
“Neither do I believe that [Harris] was subjectively so offended that she suffered injury.…Although Hardy may at times have genuinely offended [Harris], I do not believe that he created a working environment so poisoned as to be intimidating or abusive to [Harris].”
In focusing on the employee’s psychological well-being, the District Court was following Circuit precedent. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (CA6 1986), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 823, 107 S. Ct. 1983 (1987). The United States Court of Appeals for the Sixth Circuit affirmed in a brief unpublished decision…reported at 976 F.2d 733 (1992).
We granted certiorari, 507 U.S. 959 (1993), to resolve a conflict among the Circuits on whether conduct, to be actionable as “abusive work environment” harassment (no quid pro quo harassment issue is present here), must “seriously affect [an employee’s] psychological well-being” or lead the plaintiff to “suffer injury.” Compare Rabidue (requiring serious effect on psychological well-being); Vance v. Southern Bell Telephone & Telegraph Co., 863 F.2d 1503, 1510 (CA11 1989) (same); and Downes v. FAA, 775 F.2d 288, 292 (CA Fed. 1985) (same), with Ellison v. Brady, 924 F.2d 872, 877–878 (CA9 1991) (rejecting such a requirement).
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). As we made clear in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), this language “is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment. Id., at 64, quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n.13, 55 L. Ed. 2d 657, 98 S. Ct. 1370 (1978). When the workplace is permeated with “discriminatory intimidation, ridicule, and insult,” 477 U.S. at 65, that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” Title VII is violated.
This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an…epithet which engenders offensive feelings in an employee,” does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “‘so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,’” Id., at 66, quoting Rogers v. EEOC, 454 F.2d 234, 238 (CA5 1971), cert. denied, 406 U.S. 957,32 L. Ed. 2d 343, 92 S. Ct. 2058 (1972), merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.
We therefore believe the District Court erred in relying on whether the conduct “seriously affected plaintiff’s psychological well-being” or led her to “suffer injury.” Such an inquiry may needlessly focus the fact finder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.
This is not, and by its nature cannot be, a mathematically precise test. We need not answer today all the potential questions it raises, nor specifically address the Equal Employment Opportunity Commission’s new regulations on this subject, see 58 Fed. Reg. 51266 (1993) (proposed 29 CFR §§ 1609.1, 1609.2); see also 29 CFR § 1604.11 (1993). But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.
Forklift, while conceding that a requirement that the conduct seriously affect psychological well-being is unfounded, argues that the District Court nonetheless correctly applied the Meritor standard. We disagree. Though the District Court did conclude that the work environment was not “intimidating or abusive to [Harris],” it did so only after finding that the conduct was not “so severe as to be expected to seriously affect plaintiff’s psychological well-being,” and that Harris was not “subjectively so offended that she suffered injury,” ibid. The District Court’s application of these incorrect standards may well have influenced its ultimate conclusion, especially given that the court found this to be a “close case.”
We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.
Note to Students
This was only the second time that the Supreme Court had decided a sexual harassment case. Many feminist legal studies scholars feared that the court would raise the bar and make hostile-working-environment claims under Title VII more difficult to win. That did not happen. When the question to be decided is combined with the court’s decision, we get the holding of the case. Here, the question that the court poses, plus its answer, yields a holding that “An employee need not prove severe psychological injury in order to win a Title VII sexual harassment claim.” This holding will be true until such time as the court revisits a similar question and answers it differently. This does happen, but happens rarely.
- Is this a criminal case or a civil-law case? How can you tell?
- Is the court concerned with making a procedural rule here, or is the court making a statement about the substantive law?
- Is this a case where the court is interpreting the Constitution, a federal statute, a state statute, or the common law?
- In Harris v. Forklift , what if the trial judge does not personally agree that women should have any rights to equal treatment in the workplace? Why shouldn’t that judge dismiss the case even before trial? Or should the judge dismiss the case after giving the female plaintiff her day in court?
- What was the employer’s argument in this case? Do you agree or disagree with it? What if those who legislated Title VII gave no thought to the question of seriousness of injury at all?
1.7 Summary and Exercises
There are differing conceptions of what law is and of what law should be. Laws and legal systems differ worldwide. The legal system in the United States is founded on the US Constitution, which is itself inspired by natural-law theory and the idea that people have rights that cannot be taken by government but only protected by government. The various functions of the law are done well or poorly depending on which nation-state you look at. Some do very well in terms of keeping order, while others do a better job of allowing civil and political freedoms. Social and political movements within each nation greatly affect the nature and quality of the legal system within that nation.
This chapter has familiarized you with a few of the basic schools of legal thought, such as natural law, positive law, legal realism, and critical legal studies. It has also given you a brief background in common law, including contracts, torts, and criminal law. The differences between civil and criminal cases, substance and procedure, and the various sources of law have also been reviewed. Each source has a different level of authority, starting with constitutions, which are primary and will negate any lower-court laws that are not consistent with its principles and provisions. The basic differences between the common law and civil law (continental, or European) systems of law are also discussed.
- What is the common law? Where do the courts get the authority to interpret it and to change it?
- After World War II ended in 1945, there was an international tribunal at Nuremberg that prosecuted various officials in Germany’s Third Reich who had committed “crimes against humanity.” Many of them claim that they were simply “following orders” of Adolf Hitler and his chief lieutenants. What law, if any, have they violated?
- What does stare decisis mean, and why is it so basic to common-law legal tradition?
In the following situations, which source of law takes priority, and why?
- The state statute conflicts with the common law of that state.
- A federal statute conflicts with the US Constitution.
- A common-law decision in one state conflicts with the US Constitution.
- A federal statute conflicts with a state constitution.
The source of law that is foundational in the US legal system is
- the common law
- statutory law
- constitutional law
- administrative law
“Law is the command of a sovereign” represents what school of legal thought?
- natural law
- ecofeminist law
- positive law
Which of the following kinds of law are most often found in state law rather than federal law?
- torts and contracts
- maritime law
- international law
Where was natural law discovered?
- in constitutions and statutes
- in the exercise of human reason
- in the Wall Street Journal
Wolfe is a state court judge in California. In the case of Riddick v. Clouse , which involves a contract dispute, Wolfe must follow precedent. She establishes a logical relationship between the Riddick case and a case decided by the California Supreme Court, Zhu v. Patel Enterprises, Inc. She compares the facts of Riddick to the facts in Zhu and to the extent the facts are similar, applies the same rule to reach her decision. This is
- deductive reasoning
- faulty reasoning
- linear reasoning
- reasoning by analogy
Moore is a state court judge in Colorado. In the case of Cassidy v. Seawell , also a contract dispute, there is no Colorado Supreme Court or court of appeals decision that sets forth a rule that could be applied. However, the California case of Zhu v. Patel Enterprises, Inc. is “very close” on the facts and sets forth a rule of law that could be applied to the Cassidy case. What process must Moore follow in considering whether to use the Zhu case as precedent?
- Moore is free to decide the case any way he wants, but he may not look at decisions and reasons in similar cases from other states.
- Moore must wait for the Colorado legislature and the governor to pass a law that addresses the issues raised in the Cassidy case.
- Moore must follow the California case if that is the best precedent.
- Moore may follow the California case if he believes that it offers the best reasoning for a similar case.
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- Introduction to the Terminology of Law
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Introduction to the Terminology of Law ¶
What do you understand by the word “law”? It is a word which can have many meanings, but in the language of law publishing, it means a piece of legislation which regulates the way in which things are done or should be done in many spheres of life, especially in public, in order to maintain good order and prevent the growth and flourishing of anarchy.
Law according to the Roman Dutch and British systems has developed over several centuries. A great deal of the language is therefore antiquated and sometimes quite difficult to understand.
This content is adapted with permission from a training guide prepared by Adrienne Pretorius for AfricanLII.
Levels of legislation ¶
In South Africa, we have three levels of legislation. These are national , provincial , and municipal . Most jurisdictions have at least two levels: national and local government.
National legislation : This is usually published as Acts and Regulations and/or Rules. See the later sections on publication of an Act.
Provincial legislation : When our nine provinces were established, they already had a number of Ordinances which authorised them to make bylaws at municipal level. In addition to being allowed to retain many of their Ordinances when the changes were made from four to nine provinces, they were allocated certain levels of legislative involvement in respect of which they were granted the power to draft, debate on, pass and eventually publish Acts and Regulations and/or Rules. The old Ordinances were gradually repealed, and very few of them are still in existence today. When provincial legislation originally got under way in the early 1990s, the early provincial Acts used to be called laws, but they are now all called Acts.
Municipal legislation : This is usually published as Bylaws.
As most jurisdictions publish Acts, Regulations and/or Rules, we are going to concentrate on this level of legislation.
From here onwards, any reference to an Act or Acts also applies to other types of legislation. You will learn about some of these later.
Publication of Acts ¶
A Gazette is an official newspaper, and in most countries, legislation as well as a large variety of other legal notifications are published in gazettes. In South Africa, Acts are usually published by means of a Government Notice in Gazettes . There are some exceptions. For example, our Public Service Act of 1994 does not have an Act number; it is Proclamation 103 of 1994. This is very unusual in terms of our legal system, which falls into a classification known as Roman-Dutch law. We follow this system because the first colonial settlers were Dutch, and they introduced the same system that they used in their home country of Holland.
A Gazette has a number of important features:
- Firstly, the type of Gazette (national or provincial) is shown clearly on the cover (first page) of the Gazette. Either our national coat of arms or the coat of arms of one of our nine provinces will appear on that page, together with the words “National Gazette” or “Provincial Gazette” .
- Secondly, the date must appear on the first page. This is extremely important. Do you know why? The reason is that the date of commencement of an Act is often linked to the date of publication.
- Thirdly, there will be a Gazette number . This information helps us when we are searching for missing legislation.
- Below those details will be a short paragraph telling us who assented to the Act (agreed that it could be published and made available to the public). This section will include the Government Notice (or Provincial Notice) number and the date on which the Act is promulgated. This is also sometimes referred to as the date on which the Act was signed into law.
- This is followed by the number and year of the Act, as well as its short title .
IT IS IMPORTANT TO NOTE THAT THE FRONT COVER DOES NOT FORM PART OF THE ACT, AND THAT THERE ARE OFTEN ERRORS ON THIS PAGE (THE COVER). NEVER TAKE THE NUMBER, YEAR OR TITLE OF AN ACT FROM THIS PAGE. YOU MUST CHECK AGAINST THE DETAILS INSIDE THE GAZETTE AND IN THE SHORT TITLE OF THE PUBLISHED ACT.
Other information on the first page will usually include the volume number of the Gazette and the place in which the Gazette was printed. In the case of South African Acts, this is often Cape Town, but most of our Gazettes are printed in Pretoria (Tshwane), where the official premises of the Government Printer are situated.
Types of Act ¶
Acts fall into a number of categories. The two main categories are principal and amendment Acts. Others include Appropriation Acts and Division of Revenue Acts, which regulate the spending of public money (these are said to be ephemeral – the information which they contain changes on a regular basis).
Principal Acts ¶
Principal Acts are by far the most important category of Act. They lay the foundation for court decisions.
Always remember that Statute law and judicial precedent (Court judgments) form the foundation of any justice system.
Amendment Acts and other amending notices ¶
It is important to note that it does not matter how many times a principal Act is amended; it will ALWAYS retain its original number (for example, Act 71 of 2008). The only time the Act number may change is in a case where an error has been made in the Statutes books and the Act has inadvertently been incorrectly numbered. I can think of only one instance where this has happened, and it was long before I became a Statutes editor. It is far more likely that the short title will be changed altogether (in other words, the Act is renamed).
In most countries, principal legislation may be amended by principal Acts, amendment Acts, and subsidiary legislation. Some Acts do not provide for this, or provide specifically for amendment only by Act. Remember that principal Acts may also contain at least one repeal, if the Act replaces an existing Act dealing with the same area of law.
Amendments of any kind cannot be made if the amending provisions are not in operation. Always check before you start updating, and also check for whether certain provisions commence on different dates from the rest of the Act.
It is also important to know that amendment Acts do not always amend only one Act. The short title may therefore not be a guide as to which Act is amended. For example, a Revenue Laws Amendment Act may amend several Acts or every Act dealing with revenue (State income), or only one or two, and it may also amend other Acts.
Components (parts) of an Act ¶
A law or Act is usually made up of a number of different components or parts. Some of these are:
- The title, usually called the “short title”, which is the name by which the Act is known. The short title often has a reference to the date of commencement (see the later section dealing with dates of commencement)
- Details with regard to the date of promulgation (publication); who assented to (approved) the legislation; which language was signed (in multilingual countries/jurisdictions); and what the date of commencement is
- The long title, which explains briefly why the Act was made
- An Arrangement of Sections (this is not part of the law, but assists in navigating through an Act or other piece of legislation, especially lengthy documents)
- Chapters or Parts, identified by their headings (these are subdivisions used to arrange the information in an Act or other piece of legislation. In some countries, especially those which were once under British rule, the Acts are known as Chapters or by a Latin abbreviation, “Cap”)
- A number of sections/regulations/rules (according to the nature of the legislation)
- Side headings to the various sections (as with the Arrangement of Sections, these are not part of the law, but assist in navigating through an Act or other piece of legislation)
- A section containing definitions (the meaning of words as used in the particular Act. This is a very important section, because words have different meanings in different contexts; and in law, we very often have to look at other Acts to see what a certain word means in context)
- Subsections/subregulations/subrules (as above)
- Paragraphs (usually (a), (b), and so on)
- Subparagraphs (usually identified by small Roman numerals: (i), (ii), (iii), and so on)
- Tables and diagrams.
The short title is the commonly known name of a law or Act, as it is called in most countries. It usually includes the number of the Act and the year in which it belongs. Many years ago, Acts were always passed in the year to which they were allocated. For example, all Acts passed in 1984 were printed and published before the end of 1984. As the years have gone by, parliamentary sessions have become longer and less orderly, and as a result, less legislation is passed in each year.
However, Acts which have not been promulgated and published in the year in which they are allocated will be passed in a subsequent year, but will still retain the original year in the number . For example, we are still waiting for the Protection of State Information Act 41 of 2013 (known commonly in South Africa as the “Secrecy” Act) to be published. The number has been allocated, but the Act has not yet been promulgated. Even if it is published only in five years’ time, it will still be Act 41 of 2013. In some cases, Acts which are awaiting promulgation are repealed (removed from the Statutes book) without ever being made available to the public except in Bill form.
- A reference to “ the Statutes book ” refers nowadays to the computerised record of all principal and amendment Acts published and still operative in terms of South African law. Many years ago, this was a physical book (or rather, a very large set of books) containing these records, and a repeal entailed physically removing the record of the particular Act from the official book.
- A Bill is a preview of what an Act will contain. Some Bills are passed after their first version has been published, while others may go back time and again for further revision by the various Parliamentary committees.]
The long title is a summarised breakdown of what the purpose of the Act is. It may be presented in only a few words, in some cases, while in others, particularly financial measures, it can run to several pages.
The Arrangement of Sections/Regulations/Rules is an aid to navigating through a document, especially a very long one. It does not form part of the law, and in fact, many Acts have no Arrangement of Sections. If you are ever involved in law revision and consolidation, you will probably be asked to insert an arrangement of Sections wherever there isn’t one.
Chapters and Parts are subdivisions in South African Acts. There is no set pattern as to how these are applied in an Act. Sometimes there are Chapters only, and sometimes Parts only. In some cases, Chapters are divided into Parts. So there is no hard-and-fast rule regarding the use of Chapters and Parts in South African legislation. In some countries, a reference to a “Chapter” is a reference to an Act, and is usually abbreviated to “Cap”, as mentioned above.
Sections are the “meat” of an Act. They flesh out the provisions relating to the subject matter of an Act. They are numbered in sequence, but insertions are often made at a later stage, modifying the original numbering section by inserting, for example, a new section 13A.
The side headings to sections (also referred to sometimes as “marginal notes”) do NOT form part of the law, and can be edited and/or replaced when revising and consolidating legislation. In an ordinary revision service, it is not wise to change these side headings, because people tend to refer to a particular section by that side heading as well as the number of the section.
Paragraphs , subparagraphs and items are further subdivisions in an Act (and are sometimes even further subdivided), but they depend on a higher level of the hierarchy of the Act (see the section below on the hierarchy of the components of an Act) – they will usually not be found standing independently in an Act.
We refer later to “lists” of legislation in Acts. This means any sequential arrangement of information, so it could refer to the sections, paragraphs, and so on, as well as what are generally known as “lists” (see the section below on the hierarchy of the components of an Act, where there is a list of words).
Schedules fall into many different categories. The majority of them will contain amendments and/or repeals of legislation. However, many of them contain provisions supplementary to the text of the Act in which they appear. For example, an Act dealing with the establishment of a new council may contain the constitution, functions and duties of the council and its members. The South African Labour Relations Act 66 of 1995 contains a Code of Dismissal in one of its numerous Schedules. Acts relating to the Defence Force or Police or other protective bodies often have their regulations in a Schedule following the text of the Act. The South African Criminal Procedure Act 51 of 1977 has schedules relating to various categories of crime according to how severely these offences are punishable.
Whatever form it may take, a Schedule to an Act always contains supplementary information of importance in meeting the objectives of the Act. There is usually an indication of the section which governs the Schedule, and by referring to that section number, you will be able to see what the purpose of the Schedule is. A Schedule may also be governed by a number of sections.
Tables and diagrams can cause problems. It may not always be possible to position insertions of this kind exactly where they appear in the Gazette. For this reason it is advisable not to refer to tables, illustrations or diagrams by page number or by phrases such as “the diagram below”. Each individual table, illustration or diagram should be given a specific label.
Hierarchy of various features forming part of an Act ¶
The words below show the parts into which an Act is usually divided, and how we name those parts:
- Subitem (or sub-item)
- Sub-subitem (or sub-sub-item)
We usually abbreviate the terms above when annotating. Always check Acts already in the database before you start annotating to ensure that your abbreviations match those already in the publication, if abbreviations have been used.
Cut-off date ¶
When doing any type of law revision, it is important to decide exactly which legislation is to be included in the update. Once you have collected all the new legislation, go through all of the notices carefully and arrange them in chronological order. The date of the last notice which is in operation should be set as the cut-off date, unless you work specifically within monthly, quarterly or half-yearly periods. It is good practice not to change the date continually, but it also pays to be flexible sometimes. If a really important piece of legislation is passed after the cut-off date, the value to your subscribers/clients of including that notice should be weighed against working strictly to schedule and excluding legislation published after the cut-off date.
Identifying under which title an Act belongs ¶
It is useful to classify published legislation under a number of different titles rather than searching through a large database with no subdivisions. This is usually done by seeing which Acts are controlled by the same Minister (for example, the Minister of Agriculture). Most Acts contain a definition indicating which government department or Minister (or MEC or other person or organisation) controls the provisions of that Act. If there is no specific Minister or department named, it is sometimes possible to find this information by knowing where to look for clues. The first page of Gazettes containing Acts will usually indicate who has assented to the Act. While this is usually the head of the government, it may in fact be the relevant Minister, provided that the Act allows for that contingency. Nowadays, various government websites contain legislation relating to particular portfolios (areas of responsibility). So a search on Google will often provide the answer you need. If necessary, or when you are unsure, you should contact the legal drafting section of your Legislature and ask them for clarity. This applies only if you classify your information as outlined above. Some countries prefer not to do so.
Determining the date of commencement ¶
No amendments can be made to legislation if the amending provisions are not in operation.
When no indication of the date of commencement is given in the short title or a section dealing exclusively with commencement, the date of commencement is usually the date of the Gazette.
However, THIS IS NOT ALWAYS THE CASE .
Before you enter a date or dates of commencement, you need to consult the Interpretation Act of the particular country or jurisdiction. In most cases, it is made clear that the date of commencement is the date of the Gazette if no other indication is made. But sometimes, the date of commencement is defined differently. For example, section 13 of our Interpretation Act 33 of 1957 (commencement of laws) provides as follows:
“(1) The expression ‘commencement’ when used in any law and with reference thereto, means the day on which that law comes or came into operation, and that day shall, subject to the provisions of subsection (2) and unless some other day is fixed by or under the law for the coming into operation thereof, be the day when the law was first published in the Gazette as a law. “(2) Where any law, or any order, warrant, scheme, letters patent, rules, regulations or by-laws made, granted or issued under the authority of a law, is expressed to come into operation on a particular day, it shall be construed as coming into operation immediately on the expiration of the previous day.” Note In other words, if the date of commencement is 18 May 2015, the piece of legislation will commence as the clock strikes midnight on the night of 17 May 2015. “(3) If any Act provides that that Act shall come into operation on a date fixed by the President or the Premier of a province by proclamation in the Gazette, it shall be deemed that different dates may be so fixed in respect of different provisions of that Act.”
The word “deemed” means “considered” or “understood”.
Note that there may be many different dates of commencement in any given Act. If this is done, the short title or the provision regarding commencement should allow for different dates to be applied. However, the Interpretation Act has provided for cases where the draftspersons have not included this provision in an Act (see subsection (3) in the quotation above).
A date of commencement may be applied retrospectively. This means that a date of commencement may be earlier than the date of the Gazette. This is done for various reasons, which are not important at this point.
Meaning of “promulgation” and “proclamation” ¶
The word “ promulgation ” means making known to the public. A word which is often used in the same sense is “ proclamation ”. However, in law, promulgation of an Act must take place before a proclamation made under that Act can be issued. The new Act may make provision for a proclamation to be made determining the date or further dates of commencement. Sometimes a “notice” is referred to. In South Africa this is usually a Government Notice.
The date on which an Act commences is not necessarily the first date which is proclaimed. While that date certainly applies, if it brings only a few provisions into operation, the actual date of commencement will be one when most of the provisions not yet in operation are brought into force. In cases like this, you will use the first date of commencement, until it becomes clear that that date is not appropriate. You will then need to insert the correct date of commencement, and add the words “(unless otherwise indicated)”, then annotate the sections which came into operation earlier (see the section on annotating). Do you see above how many different expressions can be used in connection with dates of commencement? You’ll eventually become familiar with all of them, even if it seems confusing at first.
Consolidating and annotating ¶
This kind of work involves two very important concepts: consolidating and annotating .
If you are busy with a law revision, consolidation is a very large part of what you have to do. It is accompanied by annotation, the purpose of which is to ensure that the history of what has happened to a particular piece of legislation is shown fully. Annotations are usually added below the part of an Act which is amended, although there are exceptions. As they are interventions by the editor (they are not part of the original text), they should be in square brackets.
Consolidation of legislation is usually done to simplify legislation which has been frequently amended. All superfluous or obsolete provisions are removed, and the Legislature and the Courts will now have a relatively “clean” piece of legislation with which to work, showing all changes which have occurred to the Act since it was first published except for the ones which are no longer of value in the eyes of the law or which had previously been repealed.
As you will probably not be involved in consolidating legislation for a law revision (which is usually done by experts in the field), we won’t spend too much time on that right now. We’ll look at updating (which is part of consolidation) and annotating.
You will often be asked to add or insert provisions, and it is important to differentiate between the two functions. Even legal draftspersons occasionally confuse them, so be very careful when reading instructions in amending legislation. Inserted provisions are usually quite easy to identify. They will most often have a capital A, B, and so on after the section or subsection (or paragraph) number (for example, “section 5A”, or “subparagraph (ivD)”, or other similar expressions). However, you may have a section in an amendment Act which requires you to insert provisions, but these are purely and simply subsequent numbering, for example, “insert paragraphs (d) and (e) after paragraph (c)”. It is quite clear that these paragraphs are not being inserted; they are being added, and you can reflect that in your annotations:
[Para (d) added by …]
Similarly, if the instruction requires you to add subsection (3A), it is more likely that (3A) is being inserted:
[Subsection (3A) inserted by …]
You may wonder why we are allowed to change these words to suit what is actually done instead of following what is in the Gazette. The reason we can do so is that they are in the editor’s annotations, which do not form part of the law.
Occasionally, you will find that something had previously been deleted (repealed), and you are re-inserting it. It does happen from time to time, and you need to annotate it exactly as if it is a brand new insertion.
You may also occasionally find that you are asked to delete or repeal something which has previously been annotated as having been deleted or repealed. In a case like that, simply update the annotation. If you put in a date of commencement, it will make what has happened clearer to subscribers and clients, but that kind of enhancement must be part of your updating style – it must be applied consistently.
If you feel uneasy about that remedy, contact legal drafting and discuss the problem with them.
Changing of punctuation after adding or inserting ¶
Sometimes you will be asked to add something at the end of an existing series of entries. For example, if you look at the instruction to “insert paragraphs (d) and (e) after paragraph (c)” (you will actually be adding them), the chances are that (c) has a full stop at the end. If it does, you will need to change that to a semi-colon or comma (more often a semi-colon – check what has been used previously in the listed series), add (not insert) and annotate the two new paragraphs, and ensure that the last one in the series has the same punctuation as (c) originally had.
LRO (Law Revision Order) or Revision Service number ¶
If your legislation is printed, only parts which have changed will be updated (see the section on loose-leaf updating – loose-leaf is the most cost-effective way of publishing a print update). The Attorney-General or President/Prime Minister or head of the legislative drafting services will issue a notice at some point which will proclaim or determine the cut-off date, or mention that the legislation has been updated from the day after the previous service up to the cut-off date for the current service. This notice is usually referred to as the LRO for the update, and the LRO number will be the identifying number for the service. It must be reflected on all pages which have been replaced during the update. In countries where the LRO system is not used (for example, South Africa), this number will be referred to as the Revision Service (or merely Service) number.
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