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Lecture Notes Week Three: Common and Civil Law II

by: Cailyn Notetaker

Lecture Notes Week Three: Common and Civil Law II CRIM 405-002

Marketplace > George Mason University > Criminology and Criminal Justice > CRIM 405-002 > Lecture Notes Week Three Common and Civil Law II
Cailyn Notetaker
Law and Justice Around the World
Andrew Novak

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Courts, Lawyers, Judges, and Sources of Law Topics Covered: Common Law Evolution, Organization and sources of law, Lawyers in the common and civil law, The Judicial branches, Legal Education, Lega...
Law and Justice Around the World
Andrew Novak
Class Notes
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This 11 page Class Notes was uploaded by Cailyn Notetaker on Monday September 21, 2015. The Class Notes belongs to CRIM 405-002 at George Mason University taught by Andrew Novak in Fall 2015. Since its upload, it has received 59 views. For similar materials see Law and Justice Around the World in Criminology and Criminal Justice at George Mason University.

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Date Created: 09/21/15
Crim405 Week 3 Lecture Notes 09212015 Common and Civil Law II Courts Lawyers Judges and Sources of Law Topics Covered Common law workshop 0 Organization and sources of law 0 Lawyers in the common and civil law 0 The judicial branches 0 Legal education 0 Legal system of France 0 Legal system of Germany How the Common Law Evolves Seixas v Woods 1804 0 Plaintiff purchases wood from defendant Both parties believed it was very expensive wood Turns out it was actually very cheap 0 Court defendant made no warranty about the type of wood and didn t try to attempt to deceive or defraud the plaintiffno liability 0 Common law rule Caveat emptor buyer beware 0 Thomas v Winchester 1852 0 Plaintiff purchases dandelion oil from defendant Bottle labeled quotdandelion oilquot but was actually poisonous and plaintiff becomes deathly ill 0 Court Defendant is liable Distinguishes Seixas v Woods and makes new exception to the common law rule Loop v Litch eld 1870 O 0 Manufacturer sells machinery to buys with defects in it and points out defects to buyer After 5 years buyer loans machine to neighbor and neighbor is killed because of original defects Neighbor sues manufacturer Court Manufacturer not responsible bc no relationship with neighbor Ful lled duty by pointing out defects to buyer Losee v Clute 1873 O O Plaintiff s property damaged due to nearby steam boiler explosion of nearby paper mill Paper mill sues boiler manufacturer claiming boiler was defectively made Court Even though explosion was dangerous like Thomas v Winchester manufacturer had no duty to plaintiff because it was a third party Follows Loop v Litch eld Devlin v Smith 1882 O O 0 Plaintiff died when scaffolding collapsed while painting courthouse dome Plaintiff s estate sued employer Smith Smith argues he subcontracted scaffolding to Defendant Stevenson an expertscaffold builder Stevenson negligent in building scaffold Court Stevenson third party is to blame not Smith employer even though Stevenson had no relationship with plaintiff Didn t follow Loop v Litch eld didn t ful ll his duty by forewarning buyer Follows Thomas v Winchester MacPherson v Buick Motor Co 1916 O 0 Plaintiff injured when wooden wheel on car collapsed bc made from defective wood Defendant was manufacturer who sold the car to the car dealer Plaintiff purchased car from the dealer Court Car manufacturer is liable for defect Manufacturer could have determined wheel was defective with an inspchon Reverses Loop v Litch eld manufacturers are now liable for defects in their products Changes in the US especially during the industrial revolution were made so that it would be put in the best position to prevent harm With increased technology and expertise we expect the knowledgeable to protect buyers Rise of liability insurance because manufacturers sued constantly Organization of Law and Sources of Law Basic Principles In a civil law system legislatures are supreme Separation of powers much more rigid Rare for court to invalidate a government action Common law in many civil law countries to have separate constitutional court that only decides constitutional questions 0 Hears pure abstract constitutional disputes not appeals o No live controversy necessary similar to making an advisory opinion 0 Germany Italy Austria Hungary Russia French speaking Historic skepticism ofjudges descends from French Revolution Ordinary courts not permitted to review legality of government actions at all Civil Law Distinction between public law and private law 0 Public law governs relationship between citizen and state 0 Private law governs relationships among citizensprivate actors 0 Court system divided btwn public and private law 0 Criminal law treated with private law even though it is a form of public law Legal profession tends to be divided as well Public law includes constitutional law administrative law and criminal law Private law includes civil law and commercial law Distinction is declining Private law historically more important than public law Public law court system either in executive branch or part ofjudicial branch Ordinarily public law disputes treated separately from other legal issues 0 Require mechanism for determining which court system can hear a dispute 0 French has a special tribunal Germany allows courts to transfer cases to another court system where appropriate Private law traditional divisions 0 Civil law Law of persons Family law Marital property law Property law Succession law Law of obligations a Contract law a Tort law a Unjust enrichment Commercial law Labor Law Common Law Sources of Law 0 Judicial precedent stare decisis 0 Legislation 0 Legal conventions o In the UK a legal convention is a tradition that is legally binding on a government but can t be enforced in a court of law 0 Ex Prime Minister must be selected from the majority party Prime minister comes from house of commons should resign after failure of a vote 0 Royal Prerogative o Residue of royal power Queen sti summons and dissolves parliament confers honors assents to bills grants pardons approving cabinet appointments concluding treaties Most duties only symbolic real power held by others 0 Constitution of UK 0 Doesn t have written constitution but said to be a constitutional system Not enforceable in court but quotfounding documentsquot prevail over ordinary legislation 0 Various acts Magna Carta Petition of Right Habeas Corpus Act English Bill of Rights Act of Settlement Act of Union with Scotland European Communities Act a European Union law prevails over con icting British law Human Rights Act a UK must comply with European Convention on Human Rights Various acts of Parliament delegating power to Wales Scotland and Northern Ireland The Legal Profession in the Common and Civil Law Role of a Lawyer in Society 0 quotRule of lawquot vs quotRule by lawquot 0 Rule of law Law is supreme over political actors Even executives must follow it 0 Rule by law Legal system with lots of laws but without considering the substance Lawyers in a Common Law Society 0 Powerful closed class Controls access to legal knowledge Emphasis on problem solving 0 Doesn t focus on theory or structure of the code 0 In the US loosely divided between litigators and transactional lawyers 0 Our legal profession is fused Outside US distinction between oral advocates and legal advisors much more prominent Legal education requires more of a practical component than civil law 0 Usually requires apprenticeship in addition to examinations o Apprenticeships not required in US but are in some other common law countries Lawyers in the United Kingdom 0 Not fused bifurcated Distinction between lawyer as pleader and lawyer as agent 0 Also bifurcated in South Africa Hong Kong Ireland and 2 Australian states Barristers Courtroom advocates who appear before judges 0 Professional association called a Bar Association 0 Apprenticeship called pupilage and includes ancient Inns of Cou 0 Traditionally landed lower upper class often top of their class very proactive of their highly prestigious position Solicitors Attorneys who provide legal advice 0 Professional association called a Law Society 0 Apprenticeship called quotarticles of clerkshipquot 0 Traditionally middle class 0 Economic pressure to fuse the profession O SolicitorAdvocate Small category of solicitors who admitted to argue cases before higher courts in the UK Since 2004 barristers allowed to have direct access to clients Solicitors allowed to form partnerships that includes pro t sharing among partners Barristers traditionally not allowed to form partnerships with other barristers or with solicitors Barristers may work together in chambers to get economies of scale but without pro tsharing Barristers with 10yrs experience can become Queen s Council 0 Better compensation nancially risky quotCab Rank Rulequot 0 O Barristers must take the next case that walk through the door as long as the fee is acceptable Can t pick and chooses cases based on merits of the case Ensures everyone representation Norm exists in USA too less strictly enforced Innocence lawyer O 0 Picks and chooses cases based on guilt or innocence Concerned about safety of the verdict Arose because of advances in forensic evidence Involved in wrongful convictions and postconviction relief Legal Aid 0 Models for providing legal aid for defendants who can t afford a lawyer O O O O Jucicare model Private lawyers paid on a casebycase basis by the govt for taking a case Public defender model Staff attorneys employed by an independentagency Legal Clinic Model Nonpro t organization with salaried staff attorneys modeled on a community health clinic Maybe community based or attached to a law school Pro bono representation Lawyers representing clients for free Contingency fee arrangements Lawyer is paid a portion of winnings but only if they win Legal Education Common Law 0 In all of the common law world except US and Canada law is an undergraduate profession o LLB o LLM o LLD Most jurisdictions lawyerstobe must do an apprenticeship andor a year of practical legal education at a special institute 0 UK Legal Practice Course 0 Then graduate becomes either a trainee solicitor or a pupil barrister o Barristers must maintain quotdining termsquot at one of the four Inns of Court in London 0 Eating meals with senior barristers at the Inn replaced residence but this is being replaced by lecture events etc Legal Education Civil Law 0 Systematic framework for entire legal system Students learn from the structure and logic of code 0 Not taught with quotcase law methodquot like common law 0 Classroom materials include treatises and annotated copies of code 0 Lectures less concerned with practical application or with concrete social problems than that in the common law system Europeanization of legal education 0 European Union law increasingly harmonizing in the legal profession across borders EU has several directives aimed at allowing lawyers licenses in one country to practice in other EU member states 0 Standardization of diplomas 0 Integration still slow language differences and different structures of legal profession from country to country Lawyers in the Civil Law World 0 Law graduates must choose at graduation a career path that is most likely nal o Practicing lawyer de facto division of labor between lawyers who advise and lawyers who argue in court 0 Notary drafts certain documents certi es documents serves as an of cial depository for original copies 0 Judge separate schools forjudicial training 0 Civil Servant lncludes procurator A procurator is not adversarial to the defendant like a common law prosecutor they are trained as judges o Scholar difficult competitive path with low salary often part time Women as Justice Professionals 0 Women are underrepresented in criminal justice careers worldwide 0 Perceived physicality of policing jobs vs perceived quotcold rationalityquot of lawyer jobs 0 ln civil law systems judging is often parttime less prestigious position 0 Islamic countries women tend to be excluded from lslamic court or even ordinary court positions juries and judicial panels behave differently if they are cogender 0 Women judges more sympathetic to sex discrimination plaintiffs but male judges more sympathetic if women are present as judges 0 Police units with women more likely to take sexual assault crimes seriously 0 Women bring unique viewpoints to gendered forms of crime such as domestic violence and sexual assault 0 International Criminal Court 0 Gender parity equal number of female and male judges and other staff must be appointed 0 Rome statute requires staff members and advisors be appointed who have special training in sexual assault trauma Moral hazard 0 Risk that women will be segregated in careers or on projects that are speci cally gendered 0 Not unique to the criminal justice eld exists in many institutional environments The Legal System of Germany German Court System Federal state with power share between federal govt and states Executive power held by chancellor Angela Merkel Head of state is the ceremonial president Joachim Gauck Parliament 0 Bundestag mixture of singlemember districts and proportional representation 0 Bundesrat indirectly elected Federal Constitutional Court Highest court in Germany 0 No case or live controversy needed 0 Court can make advisory opinions 0 Any citizens can bring suit against any law 0 Doesn t hear appeals can only hear original constitutional petitions Known for many specialized courts None can hear constitutional cases all are the court of nal appeal in their subject matter jurisdiction 0 Federal Court ofjustice 0 Federal Administrative Court 0 Federal Finance Court 0 Federal Labor Court 0 Federal Social Court Unlike France very robust judicial review Constitutional court very powerful and invalidates govt actions frequently The Legal System of France 0 Unitary very centralized 0 Executive power held by powerful president Francois Hollande Head of govt is a weaker prime minister Manual Valls Constitution of 1958 0 Parliament 0 National Assembly 0 Senate 0 More institutional than German system Strict separation of powers resolve public law disputes in executive branch judges not allowed to scrutinize administrative agencies or the legislature Constitutional Council Not a court authorized to review the constitutionality of pending legislation 0 Can only review legislature before it is declared to ensure it works with the constitution Council of State Highest appellate court for public law disputes and may review legality or constitutionality of executive action on informal basis 0 Ordinary court system Various courts of rst instance appeal to Court of Appeals which appeals to the Court of Causation


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