Evolution of Common Law and Precedent in the Legal System

1. Law, Justice, and Society:A Sociolegal Introduction Chapter 3 Making Law

2. Making Law • Code of Hammurabi • First known written legal code • Eye for an eye philosophy • Roman Law • Influenced by Babylonian legal principles • The Twelve Tables (450 BCE) • First entirely secular written legal code • Criminal law began to change focus from just resolving disputes to seeing offenses as against society as a whole

3. Making Law The Common Law • Norman conquest of England (1066) brought feudal law to England – basis for common law • By Henry II (1154-1189) a body of law was developed and applied “commonly” through England • Common law system well developed in England by Thirteenth century

4. Making Law The Common Law (cont.) • Ranulf de Glanvill: Wrote Treatise on the Laws and Customs of the Realm of England- detailed transition to adherence to formal legal rules • Henry de Bracton: On the Laws and Customs of England- Furthered the “commonality” of common law

5. Making Law The Common Law (Cont.) • William Blackstone: Laws were creations of God, waiting to be discovered by reason • Commentaries on the Laws of England:had influence on philosophy of Founding Fathers and Declaration of Independence

6. Making Law The Common Law (cont.) • Judge-made law • Judges justified decision by referencing • Custom • Tradition • History • Prior judicial decisions • Developed concepts of stare decisisand precedent

7. Making Law Precedent and Stare Decisis • Under common law, every final decision by a court creates a precedent • Precedent governs the court issuing the decision a well as any lower courts • This system was brought from England to colonial America • In the United States, precedent is binding only on those courts within the jurisdiction of the court issuing the opinion

8. Making Law Precedent and Stare Decisis (cont.) • Stare decisis means “let the decision stand” (Black 2001) • If there is a prior decision on a legal issue germane to a current case the court will be guided by that prior decision • This is the principle behind establishing precedent • Assures predictability for similar cases

9. Making Law Precedent and Stare Decisis (cont.) • Not every decision a court makes becomes precedent • Ratio decidendi are legal pronouncements from courts that become precedent • Rationale used by courts to arrive at their decisions • “the reason for the decision” • Obiter dicta are nonlegal statements or arguments used to support ratio decidendi; do not become precedent • “things said by the way”

10. Making Law Precedent and Stare Decisis (cont.) • Precedent is not necessarily unchangeable • Judge-made law may be overruled by an act of the legislature • The precedent issuing court may overrule its prior decision • A higher court may reverse a lower court’s decision

11. Making Law Precedent and Stare Decisis (cont.) • A court may also distinguish one case from another precedent setting case on grounds that the details may be slightly different

12. Making Law Sources of Law • Judge-made law (common law) • Legislative law • Constitution • Statutes • Ordinances • Administrative regulations • Other sources of appropriate conduct • Religion and ethics

13. Making Law Legislative Law • Legislative enactments (bills) are statutes • Collections of statutes are codes • Includes both civil and criminal law • Criminal law referred to as the penal code • Administrative regulations • Have the force of law • Issued by agencies of the executive branch or created through legislatively delegated powers

14. Making Law Legislative Law (cont.) • Statutes are frequently written broadly • Administrative agencies are given the task of filling in the blanks. Why written so ambiguously? • Difficult to define something involving human conduct • Political implications and the need for compromise

15. Making Law The Sources and Types of Law Constitution (Constitutional Law) Legislative Statutes (Statutory Law) Executive Agency Rules and Decisions (Administrative Law) Judicial Cases (Common Law)

16. Making Law Sources of Individual Rights • Those rights which are possessed by the individual and which protect him or her from others as well as from the federal government • Federal and state constitutions • Case law • Court rules • Legislation

17. Making Law Sources of Individual Rights–Constitution • Articles of Confederation formed in 1871 • Federal government powerless • Lacked authority to tax • Lacked authority to raise an army • Lacked authority to force states to comply with any mandates • 12 of 13 states met in Philadelphia in 1787 to replace the Articles of Confederation

18. Making Law Sources of Individual Rights—Constitution (cont.) • Result was formation of the U.S. Constitution • Created a strong central government • Because of this, the Constitution was mostly concerned with establishing the federal government’s powers and limitations • Protection from very few individual rights: • Habeas corpus • Bills of attainder • Ex post facto laws

19. Making Law Sources of Individual Rights—Constitution (cont.) • Several states demanded more individual rights protection before ratifying Constitution • Result was the Bill of Rights (James Madison) • Ratified in 1791

20. Making Law Sources of Individual Rights—Bill of Rights • First 8 amendments set out 23 individual rights • Protections against government action • Only in the twentieth century were these rights applied to state governments

21. Making Law First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

22. Making Law First Amendment (cont.) Freedom of Religion • Government shall not establish a religion • Government shall not interfere with individuals’ religious practices • Essentially: government can neither promote nor destroy religion

23. Making Law First Amendment (cont.) Freedom of Religion (cont.) • Establishment Clause: “wall of separation between church and state” (Everson v. Board of Education 1974) • Government can be involved in religion if: • Statute must have secular purpose • Primary purpose of the statute must be neither pro nor anti religion • The statute must not foster excessive government entanglement with religion (Lemon v. Kurtzman 1971)

24. Making Law First Amendment (cont.) Freedom of Speech • Right to say things which anger others (including hate speech) • Includes verbal, written, and certain physical acts (a.k.a. symbolic speech or expressive conduct) • Signs • Picketing • Burning of the American flag

25. Making Law First Amendment (cont.) Freedom of Speech (cont.) • Government can regulate obscenity • Government can regulate speech likely to provoke violence • Commercial speech may be regulated more than “political” speech

26. Making Law Second Amendment A well-regulated Militia, being necessary to the security of a free State,the right of the people to keep and bear Arms, shall not be infringed.

27. Making Law Second Amendment (cont.) • Intended to protect private citizens and groups of citizens (militias) to protect themselves from oppression by the federal government

28. Making Law Third Amendment No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

29. Making Law Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

30. Making Law Fourth Amendment (cont.) • Stands most directly between the individual and the police • In response to British practice of “general warrants” • Fourth Amendment was an effort to limit the ability of police to interfere in private citizens’ lives • Required a reasonable amount of evidence (probable cause) • Does not preclude all searches and seizures, only those which are unreasonable: • Begs the question: what is reasonable?

31. Making Law Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime,unless presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

32. Making Law Fifth Amendment (cont.) • Rights associated with criminal trials, includes: • Indictment by grand jury • Freedom from double jeopardy • Right to due process and just compensation • Privilege against self-incrimination

33. Making Law Fifth Amendment (cont.) Grand jury • A group of citizens who listen to a case presented by a prosecutor • This is done in order to determine whether there is sufficient evidence to try the defendant • Used to protect individuals from being tried without some proof of guilt

34. Making Law Fifth Amendment (cont.) Grand Jury (cont.) • Issue indictments • A document formally charging a defendant with a crime • This right does not apply to state trials • Hurtado v. California (1884) • May use a prosecutorial “Information” • Several states require Grand Jury indictments

35. Making Law Fifth Amendment (cont.) Double Jeopardy • Means that a jurisdiction may not: • Prosecute someone again for the same crime after the person has been acquitted • Prosecute someone again for the same crime after the person has been convicted • Punish someone twice for the same offense

36. Making Law Fifth Amendment (cont.) Double Jeopardy (cont.) • Does not mean that: • A state may not try someone again if the first trial ends in a mistrial or a hung jury • A state cannot retry someone if their conviction was overturned on appeal • A person cannot be tried under the doctrine of dual sovereignty

37. Making Law Fifth Amendment (cont.) Self-incrimination (protection from compelled testimonial communications) • A defendant can refuse to speak to police about charged crime • Can refuse to speak at trial • Prosecution cannot comment on defendant’s refusal to speak (Griffin v. California 1965) • Does not include • Blood samples, fingerprints, or line-up presence

38. Making Law Fifth Amendment (cont.) Due Process of Law • State must follow certain procedures • Designed to protect individual rights • Whenever the deprivation of liberty or property is in question

39. Making Law Fifth Amendment (cont.) The “Taking Clause” • Eminent domain – the seizing of private property for public use • Kelo v. City of New London (2005)

40. Making Law Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

41. Making Law Sixth Amendment (cont.) • Associated with criminal trial, and includes: • Right to a speedy trial • Right to a public trial • Right to a trial by an impartial jury • Right to a notice of charges against oneself • Right to representation by counsel • Right to confront witnesses against oneself

42. Making Law Sixth Amendment (cont.) Right to a Speedy Trial • Defendant must be brought to trial without “unnecessary delay” (Barker v. Wingo 1972) • “Speedy” is determined on “an ad hoc balancing basis, in which the conduct of the prosecution and that of the defendant are weighed” • Speedy Trial Act of 1974 set the time limit at 100 days for federal cases, with significant wiggle room

43. Making Law Sixth Amendment (cont.) Right to a public trial and right to a notice of charges • Originated in traditional Anglo-Saxon mistrust of government secrecy • Right to a public trial means that defendants can have public attend the trial if they wish • The right to notice of charges means that prosecution must tell the defendant prior to trial what they are accused of so they can prepare defense

44. Making Law Sixth Amendment (cont.) Right to trial by an impartial jury • The jury must be selected from the community in which the crime occurred • Among individuals who are not predisposed as to the guilt or innocence of the defendant

45. Making Law Sixth Amendment (cont.) Assistance of Counsel • At any proceeding deemed to be a critical stage • preliminary hearing • arraignment • trial • appeal • Indigent persons must be provided a lawyer at state’s expense (possible incarceration 6mos+) • Includes the right to effective counsel

46. Making Law Seventh Amendment In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

47. Making Law Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

48. Making Law Eighth Amendment (cont.) Excessive bail • No right to bail • Bail must not be set higher than necessary to ensure the presence of the defendant at trial (Stack v. Boyle 1951) • Persons considered a threat to society can be denied bail (United States v. Salerno 1987)

49. Making Law Eighth Amendment (cont.) Cruel and Unusual Punishment • Prohibits torture • Prohibits punishment disproportionate to the offense • Does not prohibit death penalty

50. Making Law Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.