The Bramble Bush
1.What law is about
The concrete instances and rule of law;
Rules are enforced by external constraints, and to distinguish them you shall follow rules of morality and some phases of custom;
Rules are the heart of law, and the arrangement of rules in orderly coherent system if the business of the legal scholar, and arrangement in terms of rules, the drawing of a neat solution from a rule to fit the case in hand---the business of judge and of the advocate;
Rules are also about logical manipulation, which make up the business of law firm and lawyers.
Always compare what the judges (rule of law) say and their deeds.
The acts of the judges past and prospective become pieces of your environment, a condition of your living , with which you must reckon.
• The certain bodies of law, that is, the substance of the law deal with what ought to be, with whether contracts ought to be enforced at law, and when; with what formalities are necessary to make a last will stick; with how to forma corporation and how to issue a its stock, and how to keep investors from having any say in it; with what words are necessary to make an effective lease or deed of land; and so on.
• Adjective law is supposed to be the mere regulation of the work of the courts. The procedure has nothing to do with the substance law but technically economize the whole business, like trial practice and course in evidence.
Procedural regulations enter into and conditions all substantive law’s becoming actual when there is a dispute.
Public law is the institution that deals with the framework of the state, the operations of the state and the more direct relations between the state and the individual or the various groups and individuals, like corporations.
Private law, deals with legal relations between individuals. (overlap)1. Contracts---agreements between people and the legal effects of such agreements.(Market economy)2. Law of property, of land. (theory of value and fact of scarcity, and monopoly) 3. Associations and interest groups.(economic life like industrialism, capital aggregation, and the concomitants thereof, the labor org.) 4. Private wrongs---the attempted general regulation of matters in the field of free play that outside the field of agreement.(damage causes, competitions, market failure.)
Lawyer: rules of law; anticipate the court’s actions; the life of the community, the needs and practices of his client. (working situation)
2.The case system: What lies behind the case
courts: trail courts; courts of review
keywords: facts, tec., jury, trail direction, judge, common law, cross examination, presumptions, appeal, public interest, the common basis(canvassing of the records to anticipate the judge’s decisions),induction, deduction, procedure and purposes
3.The case system: What to do with the cases
keywords: a law dictionary? Rule out implications that are indirect
• The court must decide the dispute that is before it.
• The court can decide only the particular dispute which is before it.
• The court can decide the particular dispute only according to a general rule which covers a whole class of like disputes.
• Everthing, big or small, a judge may say in an opinion, is to be read with primary reference to the particular dispute, the particular question before him.
Cases system game (matching cases): 1. What are the significant categories of facts, and what is their significance to the court? 2.What differences in facts or in procedural set-up produce differences in court’s action when the situations are otherwise alike?
4.Briefing and reviewing: how to write a brief? A note? Reacting and rephrasing? (consolidations)
• Finder: title and its page in the casebook
• State and date
• Plaintiff’s statement
• Defendant’s statement
• Social feedback
• Outcome of the appeal
• Facts (that cross with procedural set-up)
• Ratio decidendi( "[t]he point in a case which determines the judgment" or "the principle which the case establishes.")
• Miscellaneous(your own opinion)
Morality(Social conformity), doctrine in action?
5.Ships and shoes and sealing wax
specialization, fact+doctrine+Ought , to wit, forming premises, using emotive words in the argument based on well structured logics, facts and doctrines
The levels of discuss about law(to predict what the court will do)
• What the court actually decided in a given case(judgment reversed, and new trial ordered);
• What the rule of the case is, as derived from its comparison with a number of other cases.(1.the reasonable safe maximum rule the case can be used for; 2.the reasonably certain minimum rule the case must be admitted to contain)
• The manner, attitude and accuracy of the court’s interpretation or transformation of the raw evidence;
• What the probable precedent value of the case, in a given court or in general;
• Estimating what consequences the case have to laymen: the relation between the ways of the court and the ways of those affected by the court
• Evaluating the court’s action in the case---of concluding how desirable it is and from the angle of doctrine.(to test its consistency with some formulation of a rule derived inductively from other cases)
Statutes VS the law of case decisions:
the case shaped the rule; the judge’s feet are firmly on the particular instance; his rule is commonly good sense and very narrow. Case law rules(innovations) are applied as if they are laws. Case law is flexible around the edges; the rules are commonly somewhat uncertain in their wording, and not too easy to make definite.
Statutes are made relatively in the large, to cover wider sweeps and looking forward. They are recognized machinery for readjustment of the law. They represents readjustments along the lined of balance of power, decide not single cases by a tiny shift of rule, but the rearrangement of a great mass of clashing interests. Their effect are confined fixed and firm and local.
Remedial statutes are to be liberally construed. And the court’s interpretation of certain statute is typical of all the courts and it’s important.
Right laws are just, correct, morally sound or socially desirable. A right is best measured by the effects in life.
Legal usage of technical words has sinned, and does still, in two respects; it is involved in ambiguity of two kinds: multiple senses of the same term, and terms too broad to be precise in application to the details of single disputes. 1. it does not use terms in single senses, but uses the same term in several senses; 2 in several senses, indiscriminately, without awareness(connotations). ----Hohfeld: right/claim: must do; privilege/liberty: may do; power: can do.
• A man has a right only in regard to another man. (legal relations of people). Same to a duty. Performance of the duty? Always look for the duty before you use the term Right. Duty bearer; phrase the conduct expected of him to correspond point for point with the counterpart’s right.
• Privilege: it is one measured by the prediction that even if something happens the courts cannot be spurred to action.
• Power liability, deals with a dynamic world. It looks ultimately toward the creation of the conditions we know as right –duty or privilege-no-right between two people. When one man change the legal manner/relation of another; the man thus exposed is under a legal liability.
still, a notes taker
@ Goodson Law lib, Duke Univ.,Sep 4th,2009