LAW 201 Study Guide - Summer 2018, Comprehensive Midterm Notes - Kaustinen, Canada, Common Law
LAW 201
MIDTERM EXAM
STUDY GUIDE
Fall 2018
Module One:
Lecture One:
• Common law sources of law:
o Constitution
▪ Supreme law of the land, most important piece
o Statutes
▪ Laws (and regulations within them) passed by parliament
o Case laws
▪ Distinguishes common law from other systems
▪ Law that comes from the outcomes of previous cases
• Judges use legal reasoning:
o Finding, knowing and applying a legal principle/rule to a new set of facts
o Rules can morph and become more subtle as facts become more complicated
▪ Every case represents a rule
o A new rule
o An application of an old rule
o A refinement of an old rule
• We read cases to figure out the rules in a common law system
• Some areas of law are focused on statutes, and some areas are focused on case law
o Criminal vs. torts/contracts (for example)
• When there is a codified statute, case examples allow judges to create a rule about how to
apply a rule
• What do lawyers do
o They apply legal reasoning
▪ What is legal reasoning:
• State the law
• Apply the law to the facts
• Come to a conclusion
• Case law is somewhat organic, it grows not through laws being passed but through judges
making decisions
• Deductive reasoning
o If these are the facts, then this is the outcome
o Lawyers use this all the time
• Case law rules are called precedent, which means that judges have to follow previous
decisions that have been made in courts
o This is based on the Latin maxim, stare decisis
o Creates consistency and predictability (leading to equal treatment)
• Top 4 myths about Canadian law
o Most cases end up in a trial
▪ About 90% of civil cases in Ontario settle
o Judges make up law as they go along
o The law is the same across the country
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▪ Depends on whether the area of law is under federal or provincial
regulation/jurisdiction
o Every province has a common law system
▪ Quebec is civil
• The adversarial system (common law)
o Judge is more of a passive observer
o Parties bring facts and law to judge and judge makes decision at the end of one
big trial
▪ Legal rules come primarily from judicial decisions
• The inquisitorial system
o Non-adversarial, prosecutorial system
o Judge determines the facts they want and directs the lawyers to bring them
forward
o Legal rules come from a civil code and not primarily from judicial decisions
o Issues are resolved one at a time
Introduction:
• Lawyers have many different roles and influences
o Politicians
o Policy makers Gov’t, NGOs, )nternational Orgs
o Private practice, in-house counsel
o Judges
o Academics
• Only 5 Canadian PMs haven’t been lawyers
• Overriding role of lawyers in society is to protect the Rule of Law
o Must be applied fairly to all, and must be created fairly
o Everyone is accountable to the law
o The Rule of Law is an overarching principle when creating and enforcing
laws
• Canadian Bar Association: National association comprised of lawyers from across
the country with various backgrounds
o Rejected proposed anti-terrorism Bill C-51
▪ Too broad, stifles free speech and restricts freedom of association,
offends the Charter
o The gov’t thought the bill would protect Canadians, allow better
investigations, and be proactive
• Internal conflict for lawyers: neutral partisan or moral activist?
Ethics and Professional Responsibility:
• Obligations to clients can conflict with obligations to the public
• Obligations to clients:
o Competence
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
We read cases to figure out the rules in a common law system. Introduction: lawyers have many different roles and influences, politicians, policy makers (cid:523)gov"t, ngos, )nternational orgs(cid:524, private practice, in-house counsel, academics, only 5 canadian pms haven"t been lawyers. Ethics and professional responsibility: obligations to clients can conflict with obligations to the public, obligations to clients, competence, ontario rules of professional conduct 3. 1-1: competent lawyer means a lawyer who , confidentiality (see. In order to quality as confidential, information must pass between client to lawyer in a professional setting: exceptions: 3. 3-1. 1, 3. 3-3, the law requires disclosure. Interim orders: orders made by a judge part way through a court case: small claims court, value
