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HUMA 1825 Note 9.docx

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HUMA 1825
Neil Braganza

HUMA 1825 Note 9 Class Writing Assignment - There is a modification for next week - Disregard the extraneous, zero in and focus on the essential. - There are three questions that are all around one theme. o This will allow us to adjust a bit: woohoo! o Answer the goddamn questions as ASKED. Nothing more. Nothing less - Fuller, Dwarkin, and Kafka: Read the two short stories. - The Alpha and the Omega is the text. Read the Fuller Text. Read the three cases. Read Dwarkin. - Dwarkin was about theory, cases is in practice - Cases: how judges decide cases; that is novel cases; cases of new instances. Where the facts of the law dont quite mesh. o This is the illustration of the theory that we have learned. Case law. We get to see the theory applied to practice - Next week were watching a film that shows the application of the theory to a Hollywood depiction of a real trial of Nuremburg. - By doing these tests, we are acquiring skills. Cases - Each case deals with a gap in the law of a moral issue. - We get to see what judges do in a case of first instance. Never before have these facts been related to the law in question. This is referred to as novel cases - Reading case law: o Judge made law common law: The English law initially applied in the courts derived from ancient usage and judicial decisions called the Precedents. Judge made law is distinguished from statutory law: Statutory law is the law made by legislators, parliamentarians, or parliaments who pass bill and statutes. o The cases are the application of different theories of adjudication. This is what judges do when they decide cases. We see natural law theorist (modern ones like Dwarkin) use expansive approaches based on moral authority. Legal Positivists, on the other hand (like Bork) who use a narrower approach of interpretation based on notions of power and the division of powers in a democracy as between the legislator and the judiciary. o Every legal case that we will ever read is a human narrative (story). o Every case has two elements to it: The human story (facts of the case that tell the story) Who, what, where, when and why? The facts answer those questions. These facts are established at trials by two ways: o Evidence: Witness testimony and documentary evidence o It remains an allegation: not a fact. These tell the facts of every case The law. Theres a law in every case. It can be part of a penal or criminal statute: o Whiteley is a criminal law. o Canada = Criminal Code of Statute Law can also be part of the Statute that governs the making of wills. Palmer Sometimes, the law is the aspect of public law such as insurance policies Dhingra Sometimes, what is on trial is not the person himself or herself, but the actual law it. Dronenburg: the law banning homosexuals from practicing that he alleges constitutional. What is on trial isnt Dronenburg, but the law under which he was dismissed from the military. o His right to privacy and equal treatment under the law. o In second semester, we look at three cases where Canadian Constitution the law is on trial: Hate propaganda, pornography and prostitution o We will see cases where litigants say that the law that theyre being charged is that the law is unconstitutional that theyre being tried Sometimes, the law is at fault - Therefore, what every case involves is the interplay between the facts and the law. o How you apply the facts to the law is what is crucial. o This is how to see concrete facts o Law schools teach you how to think like a lawyer Applying concrete facts and abstract principles in a given case. - All of our cases are appellate cases: o The First level (lowest) is the trial level. These cases have all gone to trials, and one of the parties is appealing the decision made against them, so were at the appellant level. In Canada there are courts of appeal in each province and territory, and there are courts of appeal in the US. - The last run (apex) is the Supreme Court of Canada. Very few cases of the 10,000s of cases that are litigated actually get to the Supreme Court. About 100 cases are considered. o What happens at the appellate level is very different than what happens at the trial level Trial level is very dramatic (melodramatic). Theres much narratology However, Court of Appeal is different in the sense that the facts are accepted at the appeal level. Something to do with the LAW. Either an error IN the law or a mixed error in the facts and law. The arguments are legal, technical, and dry. This is a very specialized exercise at the appellate level. The arguments are very archaic an specialized. Theres a vocabulary that goes with these matters. Style of Cause (title of case) o The title gives us who the parties are, and it gives us the court level, the year of case, and the publication in which the case is reported. There are many cases that are unreported in the sense that it isnt published. o The style of cause is always in Italics, and when youre writing you underline. At the trial level in legal cases we talk about the plaintiff and the defendant At the appeal level the plaintiff is the appellant, and the other level is called the respondent (sometimes called the appellee). The judges are referred to as Justice. At the Supreme Court, there are 9 judges. They always sit in panels of uneven number, so that it can never be a tied judgment. o It can be unanimous. The judgment can be concurring (others agree, but write their own decision), and then there can be a decent (the dissenting opinion has lost, but it can be important). For example, Justice Brandice wrote a very powerful dissent on privacy. His judgment is often quoted in other case law. In the hate propaganda cases there was another dissent quoted by Justice McLaughlin. The dissent is lost, but it doesnt mean you shouldnt pay attention to it. The reasoning and thinking can be very influential. - When reading a case, be on high alert when a judge writes in my opinion
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