CRM/LAW C101 Lecture Notes - Lecture 1: The Bramble Bush, Karl Llewellyn, Procedural Law
1 May 2018
School
Department
Course
Professor
CRIM 101: AMERICAN LAW
LECTURE 1—Introduction
American Law
• The substantive and procedural law that governs private dispute resolution—civil justice—in the context
of the American legal system
• Formal litigation and informal ADR
LECTURE 2—The (Unique_ American Legal System
What is the “legal system”?
• A collection of practices and institutions that vary from country to country, and over time
• “Law is, above all, collective actions: action through and by a government…a body of rules, or the laws
themselves”—Lawrence Friedman
o The way both ppl and institution interact with one another & through the general public
o Law is not necessarily connected to the government
• Law can be private/public and formal/informal
o Formal refers to one made by an officials made by do so by the government
• We need law to ordinate social life
What makes the American system unique?
• Common law system
• Legal actors
• Federalism
• Structure and function of the courts
• The power of judicial review
• American legal consciousness
• Litigiousness and rights consciousness
• Out constitution
Q: What is “common law”?
• A body of rules that came from England
Common Law vs. Civil Law
• Body of rules and precedents as judges decide cases
o Basic rules of how we govern
o Grows, shifts, and evolve
• Litigated: heard by judge, and a decision is made
• Judges are not in charge of memorializing law
o Rely on an already codified system of rules, typically referred to as codes (massive, rationally
managed)
o Code contains essential concepts and doctrine
• Judges in the US do not simply refer to codified rules, nor merely interpret statutes or past cases. They
also make new rules based on the precedents, in a particular case
o Judges in the US have the power to add/subtract from the common law
o Any judge, not just supreme court judges
Prof. Karl Llewellyn, The Bramble Bush
• On precedent
o A practice but also a legal norm
find more resources at oneclass.com
find more resources at oneclass.com
o “The lawyer searches the records for convenient cases to support his point, presses upon the
court what it has already done before, capitalizes the human drive toward repetition by finding,
by making explicit, by urging the prior cases”
o Precedent: an official over & over again under similar circumstance what has done before
• Precedent
o Protects the public from corrupt/bias officials
• Legal norms
o The general rule
• Distinguishing the facts
• “Janus-faced”
o Unique co-existence of past & future
▪ Get rid of troublesome precedents by distinguishing the facts, use precedents that seem
helpful
American Legal Actors
• Juries: civil law system do not have juries
• Lawyers: work up each case on behalf of their client, prepare the case, investigate the facts of the case,
and argue it
• Judges: “Umpires” a trial, rather than works up a case
Structure and Function of the Courts
• Federal v. State Courts (appellate courts)
• Resolving and processing disputes
• Lawmaking through the creation of precedents
Q: State courts handle what percentage of all legal cases filed as compared to Federal courts?
• 98%
Federalism—Dual court system
• Highest law: Supreme Court
o Whatever they decide lower court must follow (state & federal)
o Will only hear 50-80 cases out of 15,000 cases
3 Main Types of Disputes
• 1. Private disputes (individuals/groups)
• 2. Public initiated disputes (prosecuted by the government)
• 3. Public defendant disputes (government gets sued)
Q: What is the power of judicial review?
• Judges can use a constitutional standard against which they measure the other branches of government
LECTURE 3—Legal Mobilization
• How do social events become legal actions?
• How does law affect the social construction of disputes?
• How many disputes get formally mobilized?
Legal Mobilization
• The process of making use of one’s legal rights
find more resources at oneclass.com
find more resources at oneclass.com
The Transformation of Disputes
• View disputes as social constructs
• Disputes are not objective, natural phenomena that exist apart from and prior to legal intervention
• Disputes are defined and transformed by social forces and the legal system
Felstiner, Abel, & Sarat: Naming
• Perceiving an experience as an injury
• Naming “Perceived injurious experience”
Felstiner, Abel, & Sarat: Blaming
• Attributing fault for the PIE to another
• “PIE” Blaming “Grievance”
Felstiner, Abel, & Sarat: Claiming
• asking for a remedy
• naming “PIE” Blaming “Grievance” Claiming “Dispute”
Barriers to Mobilization
• Asymmetrical Power Relations
o Fear of retaliation
o Economic necessity
• Structural
• Problematic legal labeling/identity
Dispute Pyramid
Civil Ligation Research Project: General Pattern
• 5% adjudicated
Perceived Tort Injuries
• 4% adjudicated
Perceived Discrimination juries
• .08% adjudicated
Take-Away for Today
• Rights must be mobilized
• Naming, blaming, claiming, framing
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
American law: the substantive and procedural law that governs private dispute resolution civil justice in the context of the american legal system, formal litigation and informal adr. What makes the american system unique: common law system, legal actors, federalism, structure and function of the courts, the power of judicial review, american legal consciousness, litigiousness and rights consciousness, out constitution. Q: what is common law : a body of rules that came from england. They also make new rules based on the precedents, in a particular case: judges in the us have the power to add/subtract from the common law, any judge, not just supreme court judges. Structure and function of the courts: federal v. state courts (appellate courts, resolving and processing disputes, lawmaking through the creation of precedents. Q: state courts handle what percentage of all legal cases filed as compared to federal courts: 98%
