LEGL 215 Study Guide - Spring 2018, Comprehensive Midterm Notes - Common Law, United States Constitution, Tort
12 Oct 2018
Department
Course
Professor
LEGL 215
MIDTERM EXAM
STUDY GUIDE
Fall 2018
Key points - Ch. 1 Introduction to law and legal reasoning
NATURAL LAW AND POSITIVE LAW
Natural Law: A system of universal moral and ethical principles that are inherent in human
nature and that people can discover by using their natural intelligence (e.g.
, murder is wrong;
parents are responsible for the acts of their minor children).
Positive Law: The conventional, or written, law of a particular society at a particular point in
time (e.g.
, the U.S. Constitution, the Texas Securities Act, the Internal Revenue Code, and
published judicial decisions).
JURISPRUDENCE
Jurisprudence: The study of different schools of legal philosophy and how each can affect
judicial decision making.
Natural Law Theory presupposes that positive law derives its legitimacy from natural law
and holds that, to the extent that natural law and positive law differ, natural law must prevail.
Legal Positivism holds that there is no higher law than that created by legitimate
governments and that such laws must be obeyed, even if they appear unjust or otherwise at
odds with natural law.
The Historical School emphasizes the evolutionary process of law by concentrating on the
origin and history of a legal system and holds that law derives its legitimacy and authority
through the test of time.
Legal Realism contends that positive law cannot be applied in the abstract; rather, judges
should take into account the specific circumstances of each case, as well as economic and
social realities.
The Sociological School views law as a tool for promoting social justice.
PRIMARY SOURCES OF AMERICAN LAW
There are four primary sources of domestic law:
(1) Constitutions, setting forth the fundamental rights of the people living within the United
States or a given state, describing and empowering the various branches of government,
and prescribing limitations on that power;
(2) Statutes, enacted by Congress or the legislature of a given state and ordinances
adopted by a given locality; A given state statute may be based on a uniform law (e.g.
, the
Uniform Commercial Code) or on a model act (e.g.
, the Model Business Corporations Act).
However, each state is free to depart from the uniform law or model act as it sees fit.
(3) Administrative Rules and Regulations promulgated by federal, state, and local
regulatory agencies.
(4) Common law, the body of judicial decisions that interpret and enforce any of the
foregoing as well as those relationships among individuals or between individuals and their
society which are not subject to constitutional, statutory, or administrative law.
find more resources at oneclass.com
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HIERARCHY AMONG PRIMARY
SOURCES OF AMERICAN LAW
Laws emanating from the various primary sources of American law are enforced
according to the following hierarchy:
(1) The United States Constitution takes precedence over
(2) federal statutory law, which takes precedence over
(3) a state constitution, which takes precedence over
(4) state statutory law, which takes precedence over
(5) a local ordinance, which takes precedence over
(6) administrative rules and rulings, which take precedence over
(7) common law.
LAW VS. EQUITY
From their origin in the late-Eleventh Century, common-law courts were typically classified
as either “courts of law” or “courts of equity.”
Courts of Law were empowered only to award wronged parties money or other valuable
compensation for their injuries or other losses.
Courts of Equity, by contrast, were empowered to award any manner of non-monetary
relief, such as ordering a person to do or cease doing something (injunction).
In most of the United States, the courts of law and equity have merged. American courts do
still recognize legal remedies and equitable remedies.
EQUITABLE MAXIMS
A party’s right to receive equitable relief and a court’s power to grant it depends upon the
following:
- Whoever seeks equity must do equity;
- Where the equities favor both parties, the dispute must be decided according to
the law;
- Whoever seeks equity must come to the court with “clean hands”;
- Equitable relief will be awarded only when there is no adequate remedy at law;
- Equity favors substance over form; and
- Whoever seeks equity must pursue the vindication of their rights vigilantly or risk
having their claims barred.
STARE DECISIS
Stare Decisis
: The doctrine by which judges are obligated to follow precedents established
within a particular jurisdiction.
Binding Authority: Any primary source of law a court must follow when deciding a dispute.
This includes all constitutional provisions, statutes, treaties, regulations, or ordinances that
govern the issue being decided, as well as prior court decisions that constitute controlling
precedent in the court’s jurisdiction.
Persuasive Authority: Any primary or secondary source of law which a court may, but
which the court is not bound to, rely upon for guidance in resolving a dispute. A prior judicial
decision acts as binding precedent only when the subsequent court is applying the same law
as the prior court. Otherwise, the prior decision is only persuasive authority.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Positive law: the conventional, or written, law of a particular society at a particular point in time ( e. g. , the u. s. constitution, the texas securities act, the internal revenue code, and published judicial decisions). Jurisprudence: the study of different schools of legal philosophy and how each can affect judicial decision making. Natural law theory presupposes that positive law derives its legitimacy from natural law and holds that, to the extent that natural law and positive law differ, natural law must prevail. Legal positivism holds that there is no higher law than that created by legitimate governments and that such laws must be obeyed, even if they appear unjust or otherwise at odds with natural law. The historical school emphasizes the evolutionary process of law by concentrating on the origin and history of a legal system and holds that law derives its legitimacy and authority through the test of time.
