Intro to law and justice ch 7 ppt

CHAPTER 7CIVIL AND

ADMINISTRATIVE LAW

Law, Justice, and Society:A Sociolegal Introduction

Civil and Administrative Law

Designed to provide remedies for individuals harmed by others

Designed to manage social conflictDesigned to restore social harmony (Myren,

1988)Provides a means by which disputes

between private parties can be resolved without the use of force

Has its own substantive and procedural law as well as precedent


Divided into four main categories:1. Torts2. Property law3. Contract law4. Family law

Juvenile law is also a category of civil law (covered in Chapter 8).


Complaint is filed by plaintiff.Redress given in form of:

Monetary damages Injunctions Specific performance

Defendant may appeal verdict or judgment to higher court.

Burden of proof in civil trial: Proof by a preponderance of the evidence

Evidence indicates that it is more likely than not that the defendant committed the wrongful act.

Also: clear and convincing evidence Punitive damages Involuntary commitment


Many rights provided in a criminal trial are not present in a civil trial: No exclusionary rule No right to remain silent Diminished right to cross-examine hostile witnesses No legal obligation for the state to provide an

attorney for indigent defendants


The body of law associated with harm caused to the plaintiff by the action/inaction of defendant(s) (the tortfeasor)

Exist to determine what harm has been done and how best to remedy such harm so that the plaintiff is in a position similar to the one prior to the harm

Damages are awarded to the harmed; usually monetary. Constitutes majority of cases brought before American courts Individual can be held liable for harm done in both civil and

criminal courts. No double jeopardy applicable

Cannot bring suit against same person for same civil case Res judicata

“Thing decided” Not applicable in certain circumstances

Torts


Intentional acts Defendant deliberately caused harm.

Negligent acts The defendant had a duty to act in a certain way;

the defendant breached that duty; harm resulted. Ordinary care standard

Lubitz v. Wells (1955)

Strict liability Plaintiff need not prove that the defendant acted

intentionally or negligently.

Categories of Torts


Challenges causal and duty issuesAffirmative defenses

Contributory negligence If an injured party is partially responsible for her

injuries, she is barred from recovering from a tortfeasor.

Comparative negligence Apportions responsibility

Consent and immunity (sovereign immunity) Consent to being harmed by another Judges cannot be sued for releasing an individual on

probation who then harms someone.

Defenses to Torts


Efforts to have legislation passed that limits frivolous lawsuits and exorbitant punitive damages awarded by jurors

Driven by headline cases“Sue-happy” tradition appears to have

passed.

Tort Reform


Product of English common lawProtection of ownership rightsProperty: the right of possession or

ownershipIncludes:

Personal Real Intellectual

Pierson v. Post, 1804City of Oakland v. Oakland Raiders, 1980

Property Law


Interests are rights.Freehold estate: a person owns a piece of

property Fee simple estate

Possession ends at death. Fee simple absolute state

Possession does not revert to original owner at death. Tenancy in common

Non-freehold estate: the right to use property

Interests in Real Property


Easement Limited right to use the property of another for a specific

purposeAdverse possession

Generally affects only property abandoned by original owner

Very easy to prevent a claimNuisance doctrine

Property owner may not use property in such a way that it has an unreasonable, adverse effect on other property owners.

Must keep property reasonably safe

Interests in Real Property (cont.)


Personal property Any tangible item not connected to the land

Movables Can be transferred permanently or temporarily to

another person by ownerBailment

When a person transfers possession of one item to another person for a particular purpose with the understanding that it will be returned

A transfer of possession, not ownership

Interests in Personal Property


Governs the conduct of businessContracts

Legally enforceable promisesBreach of contract

When terms of contract are not metUniform Commercial Code

Standardizes trade and contract practices among merchants and businesses

Codifies variety of principles already established by common law

Contract Law


Elements of a valid contract:1. At least two parties

Two-party requirement2. Must be capable (have legal capacity) of signing a

contract Legal capacity requirement

3. Must agree to terms of the contract (assent) in good faith

Assent requirement4. Must have both a promise and consideration

Legality requirement5. Can be either written or verbal

Sullivan v. O’Conner (1973)National Labor Relations Board v. Bildisco & Bildisco

(1984)

Contracts (cont.)


Designed to protect integrity of marriageConciliatory rather than accusatory

No necessary judgment of right or wrongFocuses largely on entering into and

dissolution of marriagesRequirements for marriage

License Possible blood test and waiting period

Presence of someone legally permitted to acknowledge marriage

Witnessed marriage vows

Family Law


Marriage is a legal contract.Legal capacity (age, sound mind)o No mental deficiencies

• Insanity • Being under the influence

No closely related people Cannot be married to someone else

• Bigamy

Who May Marry Whom?


Reynolds v. United States (1878)Skinner v. Oklahoma (1942)Loving v. Virginia (1967)Zablocki v. Redhail (1978)Turner v. Sufley (1987)

Supreme Court and the Right to Marry


Federal Defense of Marriage Act of 1996 (DOMA) Only opposite-sex couples can be married.

2008 California Supreme Court ruled same-sex marriage

constitutionally permissible Same year Proposition 8 passed in CA Lawsuit filed

Claims DOMA and Proposition 8 are unconstitutional based on Article IV of Constitution, full faith and credit clause

August 2009 Federal district judge dismissed case on jurisdictional

grounds.• Did not rule on merits of case

Supreme Court and the Right to Marry (cont.)


February 2012 Federal appeals court struck down Proposition 8.

May 2012 Three-judge panel of U.S. Court of Appeals for First

Circuit unanimously declared DOMA unconstitutional. No immediate effect from ruling

Government will appeal.Next appeal is to U.S. Supreme Court

Precedent indicates a decision to make same-sex marriage constitutional. Court can split hairs, determining sexual orientation not to

be a protected category. Can also appeal to Skinner ruling

Marriage in terms of procreation

Supreme Court and the Right to Marry (cont.)


Couples cohabitate and act in every way as though married For a period of time and maintaining certain criteria

Recognized as valid if states allow them 39 have abolished them.

States recognize marriage to be a legal contract. Carries rights and responsibilities

Those that recognize them require individuals to abide by contractual agreements in establishing relationship. Also may have to abide by dissolution requirements

Common-Law Marriage


Requires legal grounds No-fault

No assumption of fault by either partner Fault

Adultery Cruelty Desertion Insanity Alcoholism

Annulment Legal declaration that not all requirements were met;

ergo, marriage never existed Lack of legal consent Impotence Concealing STD Concealing pregnancy from union with another person

Divorce and Annulment


Dissolution requires determination of who gets what out of partnership.

Statutes vary by state, but two types dominate: Dual property All property

Child custody Based on custodial status of parents

Child support Based on custodial status, income of both parties, and

costs of childrearing Many states have complex formulas.

Spousal support Can be different from child support

Dividing Property, Child Custody, and Spousal Support


Branch of public law involving governmental administrative agencies Agencies make, enforce, and adjudicate

administrative law. Investigates complaints, conducts on-site

inspections, and requires annual reportsCombine government rolesHave a huge impact on livesArticle 1, section 8 of U.S. Constitution

Grants Congress plenary power to regulate commerce

Prior to twentieth centuryDuring twentieth century

Administrative Law


Origins and Growth of Administrative AgenciesExplosive growth in administrative/regulatory agencies since 1789

Interstate Commerce Commission (ICC) Created in 1887 Designed to respond to unfair railroad tariffs

Agencies rapidly grew under President F.D. Roosevelt in 1930s.Passing of Administrative Procedure Act (APA) of 1946170 federal agencies today

Administrative Law


Securities and Exchange Commission (SEC) Has power to regulate activities related to stock

exchange and securities marketsRegulatory agencies

Create their own rules due to realization by Congress that only they (the agencies) have specific knowledge pertaining to subject matter

Investigate violations of agency rules and devise ways to enforce them

Settle most disputes informally by voluntary settlements Can be settled in administrative court hearings

Chevron deference

Administrative Law


Increase in concern since 1960sOverseen by Environmental Protection

Agency (EPA)Is an ideal that is difficult to attainFirst Earth Day in 1970

Environmental laws existed before 1960s. Most effective passed after late 1960s

National Environmental Policy Act (NEPA) (1969) Clean Air Act (1970) Clean Water Act (1972)

Environmental Justice


Local police and prosecutors not trained to enforce environmental laws, nor view them as priority

EPA Largest regulatory agency Divides enforcement tasks into three areas:

Civil enforcement Cleanup enforcement Criminal enforcement

Most regulations (both federal and state) allow for both civil and criminal enforcement. Agencies tend to pursue civil over criminal.

Environmental Justice (cont.)


Burns and Lynch (2004) Support for environmental protection has waxed and

waned across presidential administrations since 1970. Nixon administration

Created EPA Largely positive influence on environment

Carter administration Provided mixed messages

Regan administration Pro-business/antiregulatory stance damaged EPA

George H. Bush administration Mixed record much like Carter

G.W. Bush administration Seen as worst on environmental issues

Obama administration Entered office with “greenest” credentials

Environmental Justice (cont.)


Primarily offenses committed by business interests Dumping toxic waste in rivers, etc.

Many have far-reaching health and safety effects

Defendants typically tried under principles of strict liability Civil or criminal courts Rylands v. Fletcher (1868) United States v. Weitzenhoff (1994)

BP oil blowout on April 20, 2010 Considered to be most spectacular and costly manmade

environmental disaster in American history

Environmental Crime


Administrative agencies lack criminal enforcement powers beyond assessing fines. Can refer for criminal prosecution

White-collar crimes absent from tally in Uniform Crime Reports (UCR)

Financial Crimes Report Provides separate accounting of white-collar crimes

each year

Administrative Law and Corporate Crime


Few corporate crooks were recipients of truly meaningful sanctions in past.

Things are beginning to change: Following Congressional hearings and public

outcries Passing of Sarbanes-Oxley Act (SOA) of 2002

Requires company chiefs to personally vouch for their company’s financial disclosures• Allows for proaction rather than reaction to white collar crimes• Can no longer hide behind “plausible deniability”

White Collar Crimes Penalty Enhancement Act Created new securities offenses with significantly

enhanced penalties

Recent Responses to Corporate Crime