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HEOC 725 SESSIONS 1, 2-A & B

HEOC 725 SESSIONS 1, 2-A & B. LEGAL OVERVIEW: LEGAL SYSTEM, PROCESS AND ISSUES. Legal Overview – Legal System. Sources of “the Law” Natural Law (as deduced by mankind) Sacred Texts (for example, Five Books of Moses; New Testament; Koran)

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HEOC 725 SESSIONS 1, 2-A & B

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  1. HEOC 725SESSIONS 1, 2-A & B LEGAL OVERVIEW: LEGAL SYSTEM, PROCESS AND ISSUES

  2. Legal Overview – Legal System Sources of “the Law” Natural Law (as deduced by mankind) Sacred Texts (for example, Five Books of Moses; New Testament; Koran) “Endowed by their creator with certain inalienable rights” (Declaration of Independence) Consent of the Governed (democratic principle) Human Rights (global concept)

  3. Legal Overview - Legal System Model to be used for review and understanding the legal system: vertical and horizontal Vertical – hierarchies of authorities Horizontal – connections between authorities at the same level of hierarchy

  4. Legal Overview – Legal System • Highest Level: • Constitution (“organic” law or document by which the level of government is organized) • Statutes • Enacted by elected representatives • Federal, state and local • Case law (decisional law; the “common law”) • Reliance on concept of precedent (stare decisis)

  5. Legal Overview – Legal System • Case law (cont’d) • May be “controlling”, or merely “persuasive”, authority • Concurring and dissenting opinions • “Dicta” -- gratuitous judicial pronouncements in a court decision; a statement not needed in order to reach the decision rendered, and therefore having no precedential value

  6. Legal Overview – Legal System • Administrative regulations • Issued by executive branch departments as authorized by statute • Regulations may have “the force and effect of law” • Administrative rulemaking process (advance notice of proposed rules issued to public, and opportunity for public to comment prior to issuance of final regulations)

  7. Legal Overview – Legal System • Law and Equity • American legal system has its roots in the English system, dating back several centuries • Key to English system circa (say) 1600: “the King is the Law”. But to provide an opportunity for notions of fairness to be considered in particular disputes, the King allowed some disputes to be resolved by a Church official, known as the Chancellor

  8. Legal Overview – Legal System • Law and Equity (cont’d) • The King was primarily concerned with rules about the inheritance of land, given the aristocratic structure of English society • Chancellor considered the “equities” of a matter, and eventually equitable maxims were developed to guide decisions (example: One who asks the Chancellor to require an equitable result must approach “with clean hands”)

  9. Legal Overview – Legal System • Law and Equity (cont’d) • The King eventually allowed the development of courts to which his authority was delegated in order to resolve disputes. And, eventually, the concept of “precedent” grew out of these “Law Courts” • The Chancellor’s separate “equitable jurisdiction” continued to exist, • Until today . . . .

  10. Legal Overview – Legal System • The Circuit Court for Cook County Illinois has both a Law Division, and a Chancery Division • Lawsuits seeking money damages are filed in the Law Division, with a right to trial by jury in most cases • Legal claims asking the court to take some action based on principles of fairness and equity are filed in the Chancery Division • A higher education administrator should be aware of these distinctions because . . . .

  11. Legal Overview – Legal System • Law and Equity (cont’d) • Although the Federal Courts do not have separate divisions for law and equity, nevertheless the standards by which a court resolves a case depends on the “nature of the relief sought” (legal, or equitable) • Thus, in the Lopez case, the student was seeking a preliminary injunction – an equitable order by the court enjoining the institution from enforcing an unconstitutional anti-harassment policy. • The Court’s ruling was based on equitable principles

  12. Legal Overview – Legal Process • Courts • Federal, and State • Many important distinctions, but one is most critical to understand: • Federal Courts have limited jurisdiction (only certain types of cases may be decided by a federal district court) • State Courts are courts of general (unlimited) jurisdiction

  13. Legal Overview – Legal Process • Substantive or Procedural? • The rules by which a proceeding in court is conducted are “procedural” • The legal rules that prohibit, or require, certain actions are “substantive” • It is important to understand that some court rulings are made only on procedural grounds, not “on the merits” of a claim (that is, a procedural ruling generally does not resolve the dispute under the applicable substantive law)

  14. Legal Overview – Legal Process • Attorney Rules • Licensed by a particular State, and subject to the State’s Rules of Professional Conduct • Rules may have a significant practical impact, e.g.: • Strict rules exist about an attorney representing two parties who have an actual or even only potential conflict of interest – such as a College, and a professor accused of harassment • Rules prohibit direct contact with a party the attorney knows to be represented by legal counsel

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