ECO320H1 Chapter Notes - Chapter 3: Punitive Damages, Appellate Jurisdiction, Life Tenure
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Chapter 3: A Brief Introduction to Law and Legal Institutions
•Judges are left to interpret legislation where it is ambiguous.
oThey, in other words, create law by interpreting legislation.
•Laws of nature: laws that were created by the English king’s court who examined
community life and found such laws as they already existed.
oThese created a precedent for future courts to follow.
oPrecedent (common law) = generally accepted interpretation (civil law)
oCommon law was created through these evolving precedents (‘common’
because they are allegedly rooted in the common practices of people).
•In 1804, Napoléon promulgated the Code Napoléon, which was based on pure
reason and ancient sources.
oThis code evolved into the modern-day civil law.
•Each countries law (whether common/civil) will vary according to its own history
and purposes for law.
•Common law judges justify their findings of law by reference to precedent and
social norms, or by broad requirements of rationality presupposed by public
•Civil law judges justify their interpretation of a code directly by reference to its
•Adversarial process: the arguments made by both sides are made exclusively by
their lawyers, and the judge is not supposed to direct a line of questioning or
develop an argument.
oCommon law countries have this process.
oPrinciple is that the truth will emerge from a vigorous debate by the two
•Inquisitorial process: the judge will ferret out the truth by directing questions to
the lawyers and developing arguments from the questions.
oCivil law countries have this process.
oPrinciple is that the court has a direct interest in finding the truth regarding
private disputes and crimes.
•Common law systems permit either party to request a trial by jury.
oThe judge will decide the questions of law while the jury will decide the
questions of fact.
•Hierarchy of law:
•Rules issued by the executive/government agencies.
•Statutes take precedence in the event of a conflict in a common law system.
oAnother way judges create law is by setting aside a lower levelled law.
•In both systems, legislation may be shot down if it is determined by the courts to
be contradictory to the constitution (only some countries permit this by the
•There are three tiers in both the state/federal level court systems in the US:
oThe Supreme Court of the United States
oAppellate courts (courts of appeal)
oTrial courts of general jurisdiction
•The trial courts of general jurisdiction are the “entry-level” courts who first hear a
wide array of civil/criminal disputes.
oThe cases are written down and saved by the government (why they are
aka courts of record).
oIn the state systems, these courts are organized along county lines.
oIn the federal system, the entire country is organized into 94 judicial
districts, each with a federal district court.
The larger states with more disputes may have up to 4 federal
As federal litigation grows in a state, Congress appoints more
judges within each district.
•There are several specialized tribunals within the federal court system.
Special tax courts
Federal administrative agencies (FCC)
•The appellate courts are the next level in the court systems.
oMost state systems have a single court of appeal; about 1/3 of the states
and the federal system have intermediate appellate courts which are
between the courts of general jurisdiction and the court of last resort.
oAs long as the parties from the trial agree to pay the costs involved, they
are allowed to seek appellate review of a lower court’s judgement (‘as of
The courts of last resort (i.e. Supreme Court of the US) typically
have discretionary right of review on the cases they will see.
•Some cases must be reviewed regardless (i.e. death
sentences in most states).
oAn intermediate court of appeal in the federal system is called the “Court
of Appeals for the _______ Circuit.”
There are 13 circuits; most containing more than 1 state.
Usually 3 judges will form the panel but in significant cases all
district judges may form the panel (court is said to be sitting en
oThe US Court of Appeals for the Federal Circuit is a special intermediate
appellate court in the federal system just for hearing matters regarding to
Assumed the jurisdiction of the US Court of Customs and Patent
Appeals and the appellate jurisdiction of the US Court of Claims.
There are 15 judges seated on the court.
•The Supreme Court of the US is the highest court in the federal judiciary.