OUTLINE
 
by Paul Nervy
Copyright (c) 2006 by Paul Nervy
 
Visit www.paulnervy.com.


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LAW

Contents
Philosophy of law.
Comparative law
Legal education
Legal Research
Areas of law.  
	International law
	Procedural law
	Administrative law
	Constitutional law
	Criminal law.  
	Contract law.  
	Criminal law.  
	Property law.  
	Tort law.
	Environmental law
	Family law.  Marriage.  Wills.
History of law
	History of theory of law
	History of practice of law
US legal system structure and function (see politics)


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Philosophy of law.

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Various approaches to the study of law


Analytical approaches to law.
	Logic definitions.  Legal Formalism.  Hans Kelsen.
	Language definitions.  "Use" theories of law.
	Conceptual analysis.

Legal realism
	Sociological jurisprudence.  Roscoe Pound.  Cardozo.  
	Critical Legal studies.

Power-based views of law.

Contract-based views of law.  Rousseau.  

Positivist views of law.  Empirical.  Verificationist.

History-based views of law.  Comparative law. 

Ethics-based views of law.  Law is an official, legal, secular ethics system.

Objective views of law.  Based on objective views of ethics.

Subjective views of law.  Based on subjective views of ethics.



Legal positivism.  Positive law.  
	Law as it is.  Empirical study of law.  Law studies separately from ethics.
	John Austin.  Command theory.
	Hans Kelsen.  Grundnorm theory.
	HLA Hart.  Rule of recognition.

Natural Law theories.  
	Law as it should be.  Law studied with regard to ethics.
	Divine command theory.  Bogus.
	State of nature theory.  Bogus.
	Lon Fuller.  Morality and law.

Ronald Dworkin.  Interprative view of law.


Continental theories of law.  Influenced by European philosophies.
	Hermeneutics.  Dilthey.  
	Phenomenology.
	Existentialism.
	Deconstruction.
	Postmodernism.
	Literary criticism.


Critiques of law made by rich white men.
	Feminist critiques of law.
	Economic critiques of law.  Marxist critiques of law.
	Race critiques of law.  Black legal studies.


Schools of philosophy of law.   Schools of jurisprudence.

Scientific approaches to law.
	Law as an applied science.  Scientific method.
	Legal Positivism

Pragmatic approaches to law
	Dewey.  

Sociological approaches to law.  Practical and realistic.
	Sociological jurisprudence.  
		Roscoe Pound.  Holmes.  Benjamin Cardozo.  Learned Hand.  
	Legal Realism  
	Critical Legal Studies.
	
Psychological approaches to law.
	Legal reasoning approaches.
	Approaches that take into account emotions of all parties and society.

Logic based approaches to law.  
	Legal Formalism.  Hans Kelsen.  "Grund" principle.
		The legal system should be logical.
		The legal system should be formalized and axiomatic, like geometry.
	Law as rules.
		Rules, standards, and judicial discretion. 

Linguistic based approaches to law.
	Linguistic analysis.
	Ordinary language philosophy.  H.L.A. Hart.

Law as the interpretation and understanding of texts.
	Hermeneutic approaches to law.
	Deconstructionist approaches to law.  Drucilla Cornell.
	Postmodern approaches to law.

Historical approaches to law.
	Comparative law approaches.  Maitland.
		International jurisprudence.  Grotius.
			Human rights.
	Legal anthropology

Ethics based approaches to law.
	Utilitarianism approaches to law.
		J.S. Mill.  J. Bentham.
	Lon Fuller.  Morality of law.
	Rights based approaches to law.
		John Rawls.  
		Ronald Dworkin.

Economic approaches to the law.
	Richard Posner.

Analytic approaches to law.
	Logical analysis.
	Linguistic analysis.

Marxist approaches to law.

Feminist approaches to law.

Environmental approaches to law.
	Environmental law.

Natural law theories.
	John Finnis.


Legal Formalism.  Law is like geometry.  Law by the book.
vs.
Legal Realism.  Law the way it really is.


Positive Law.  Rulers and judges create law.  H.L.A. Hart.
vs.
Natural Law.  God, Nature (Darwinism), or human rights.  Law exists and we discover it.


Absolutists.  Ethics and thus laws are universal and thus absolute.
vs.
Relativists.  Ethics and thus laws are relative to situations and cultures.


Political approaches to law.  Law as an arena for politics
	Liberal approaches to law.  
		For change.  Progressives and activists.
		Flexible interpretation of laws.  
		Laws must be able to change to adapt to a changing world.
	vs.
	Conservative approaches to law.
		Against change.  Status quo.  Laizze faire.
		Strict interpretation of laws.
		Laws must not change too quickly 
			(said until conservatives need to change a law)


Political critiques of law
Law is heavily politicized.  The political party in power often shapes law to their liking.
Judeges do whatever they want.  And very often what judges want to do is support the constituencies that put them in office.

Economic critiques of law.
The rich get their way in the courtroom.  The poor do not get their way.

Marxian critiques of law.
The law is made by the rich and powerful.  The law serves the interests of the rich and powerful.  The laws, by the rich and powerful, for the rich and powerful, are often at the expense of the poor and disempowered, and injustice results.

Feminist critiques of law.
Men have created the law.  American law has oppressed and exploited women.  The law needs to be changed to protect women's rights.  Who will change the law to empower women?  Not men.  Women.

Black critiques of law.
Whites have created the law.  American law has a history of disempowering black people.  For example.  The law needs to be changed to protect the rights of black people.  Who will change the law to empower blacks?  Not whites.  Blacks.

Environmental critiques of law.
Humans have created the law.  American law has a history of exploiting and oppressing the environment.  The environment is underrepresented in the law.  Animals have rights.

Atheist critiques of the law.
Religious people have created the law in favor of their own religions.  There is no god.  Ethics must come from somewhere other than appeals to god.  Ethics should be based on reason and emotion.  Law should be based on reason and emotion, not appeals to god or the bible.  

Critiques of "natural law"
(1) "Nature" is not a souce of law.  We do not live by the law of the jungle, "kill or be killed".  We should not commit the naturalistic fallacy that says that everything in nature is moral.  (2) "Human nature" is not a source of law.  Everything that humans do is not moral.  We cannot say that only the moral things we do are "human nature.

Anarchist critiques of law.
People don't need law.  People don't need government.  Anarchism is not very compelling.

Logic analysis of the law.
Analyze the logic of legal arguments.

Linguistic analysis of the law.
Analyze the language used in written laws.  Analyze the language used in courtroom arguments.

Conceptual analysis of the law.
Analyze the concepts used in the written law and in legal arguments.

Scientific view of the law.
(1) The law should be based on a model of the sciences.  (2) The law should be empirical.  (3) The law should be value free?  Seperate law and ethics?

Sociological view of the law.
(1) Law is a social construct.  (2) Law is comprised of social institutions like legislatures, courts, etc.



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What is law?
	Definitions of law
	Law as a rule.  We agree on rules of how to do things.  Like rules of a game.
	Law as edict or command of king.
	Law as applied ethics.

What is a law?
	A law is a rule.
	A law is a "must" or "mustn't", as opposed to a "should" or "shouldn't"
	A law is codified ethics
	A law is the exercise of power.

What is law?  
	Body of rules 
	An activity
	Or both.


Various definitions of the word law
	Scientific laws.  
		The hard sciences.  The laws of physics.
		The soft sciences.  Psychology and sociology.
	Human created laws
		Written laws.  What this section is about.
		Norms.  



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Nature of law.
	Related concepts
		values
		rights
		power
		ought/ideal vs. is/real


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Functions of law.
To govern.  Administrative law.
To punish crime.  Criminal law.
To settle disputes.  Dispute resolution.  Tort law.


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What is the relation of law and politics?  
	Politicians make laws.

What is the relation of philosophy of law and political philosophy?


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Types and areas of law
Procedural law
Substantive law
Constitutional law
Administrative law


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Punishment, theories of
For would-be criminals.  To deter.
For the criminal.  To teach a lesson to the criminal.
For society.  To show justice being done.
For the victim.  To give some sense of closure.


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Questions of law

Questions of fact.


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Interpretation of law

Common law vs. statute law.

Objectivity in statutory interpretation.  

Plain meaning fallacy.  

Indeterminacy of translation and interpretation.

Questions of precedent.


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Legal rights.

Duty to Obey the Law
Legal obligations.  
	Citizens 
	Contractual obligations

When to break the law?


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Law making - government

Law arguing - lawyers

Law judging - judges.

Law enforcement - police.


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Justice, theories of
	Corrective justice (teach)
	Retributive justice (payback)
	Procedural justice (fair trial)
	Distributive justice (fairness, equity)


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Judges
How should judges be selected?
By appointment by an executive?
By mass election?
By peer election?

What should be the role of judges?

What should be done about corrupt and incompetent judges?


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Juries
What should be the role of juries?
How should a jury be selected?
What should be done about corrupt or incompetent juries?



Lawyers
What should be the role of lawyers?
How should lawyers be selected?  By what minimum standard?
What should be done about corrupt and incompetent lawyers?


Sentencing.
Theories of punishment.

Death penalty.  Arguments against.  Arguments for.
Life in prison.  Arguments for and against it.
Three strikes and your out.
Zero tolerance.  No mercy for first time offenders.
Corporal punishment.

Torture to extract confessions is wrong.

Classes of crimes: felonies and misdemeanors.
Degrees of crime: 1st, 2nd and 3rd.



Two sides.
Three way cases.  Four way cases.
Class actions.

Let the public decide.
Let a jury decide.
Let an individual judge decide.
Let a group of judges decide.


For any area of law
What are the major statutes.
What are the major cases.


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COMPARATIVE LAW

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Systems of law

Some systems have no lawyers and no jury.  Judge hears arguments directly from plaintiff and defendant.  Judge interrogates both sides.  Judge decides case.  

Some systems have no jury.  Has lawyers that argue.  Judge decides.

Some systems have judge, jury and lawyers.  Adversarial system.  Professional lawyers represent defendant (accused) and plaintiff (accuser)

That is to say, some systems combine the roles of...
Police (sheriff) and judge.  
Judge and lawyer.  
Judge and jury.  

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Statute or Code law.  
French legal system.
German legal system

Case law.  
English legal system.
American legal system

Soviet legal system


Law system of any country.


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Comparative law
static - at any point in time
dynamic - through history


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Legal Education

First year of law school - general foundations in Contracts, Torts, Criminal, Property

Second year of law school - picking a specialty


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Legal Research.  

Sources and citations.
	Statute law books.
		Federal, state or local level.
	Case law books.
		Federal, state or local level.

Gather and analyze facts.  Then identify legal issues.

Find, read, and update the law.

Argue the facts of the case or the law to be applied.


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International law.

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World

International government.  World government.

International law.  World law.

The United Nations.

UN Court of International Law. 


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Nations

Soverignty of a nation.  
A region declaring itself a nation.
Recognition of a nation by United Nations.

Nation vs. nation.

Treaties

Conflict of Laws of Nations.


War.  
Wars of self defense.  More justified.
Wars of aggression.  Less justified.
Laws of war.  
Geneva convention.
Crimes against humanity.


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Organizatons

NGO's.  Non-governmental organizations.

Multinational corporations
International business law.


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Individual persons

Diplomats
Immunity


Nationals abroad.
Jurisdiction.
Extradition.


Asylum.
Political refugees seeking political asylum.

Human rights.
International Declaration of Human Rights.

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Geographic areas

Law of the sea.  
International waters.

Law of the air.  
International air space.

Outer space.

Antarctica.




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Procedural law.

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Adversary system.

American Bar Association.  (ABA)

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Civil procedure

Criminal procedure

Administrative procedure.

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Evidence.  

What evidence is admissible?
Relevance
Foundation
Form


Evidence types

Direct evidence 
Circumstantial evidence

Witnesses

Testimony - spoken
	Party testimony.  Testimony by defendant or plaintif.
	Expert testimony

Documentary - written

Real evidence - objects.  For example, murder weapon.




Relevance

Relevant 

Irrelevant



Admissibility

Admissible

Inadmissible.



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The flow of trial

Pre-trial
	Where to try the case.  What geographic area.  What court.
	Jurisdiction
	Venue

Discovery
	Subpoenas
	Depositions

Trial
	Examination of witnesses
	Cross examination
	Verdict
		Acquittal.  Not Guilty.  (Innocent).
		Conviction.  Guilty.

Post trial
	Sentencing
	Appeal

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Objections by counsel 
	Badgering the witness.
	Argumentative.
	Leading the witness.
	Irrelevant.
	Hearsay.

	Objections can be sustained or overruled by the judge.

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Other terms

Lawyer
Attorney
Counsel
Esquire

Summons

Suit
Charges
Indictment


Allegations.

Arrest
Bail.

Arraignment
Allegations.
Pleading

Subpoena
Affidavit
Appeal

afortiori

amicus curiae

Summons
Trial
Discovery
Witnesses
	Eye witness
	Expert witness
Testimony
Verdict.
Warrant

Hearing

Plaintiff.  Complainant.  The prosecution.
Defendant.  Accused.  The defense.

Burden of proof
	in civil cases
	in criminal cases

reasonable doubt
circumstantial evidence
preponderance of evidence


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Administrative law.


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Substantive law

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Constitutional law.  

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Bill of rights.  Rights for individuals

Freedom of speech.

Freedom of religion

Right to assemble.  

Right to bear arms.

What form of government does the constitution set up?

Interpretation

Privacy

Equality


Abortion
Affirmative action.  Discrimination.
Gun control vs. right to bear arms.
Death penalty.  Capital punishment.
Separation of church and state.
Immigration.  Citizenship.
Taxation
Welfare.
Civil rights.
Civil disobedience.  





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Criminal law  

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Intention vs. accident.  
Mens rea
Pre-meditated.  
Willful.  
Insanity defense.  

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Accomplices
Accessory
Aiding and abetting.
Conspiracy.
Collusion.

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What is the prevelance of crime worldwide?
What are your chances of becoming a crime target over a lifetime?
One out of how many people is a crime target?

What is the prevelance of crime in the U.S.
What are your chances of becoming a crime target over a lifetime?
One out of how many people is a crime target?

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Misdemeanors.
Felonies.

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Crimes against people 
Homicide.  Murder
Manslaughter.
Mayhem.
Battery
Assault
Rape.
Sexual slavery.
Stalking.
Kidnapping.  Abduction.

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Sex laws
Prostitution.
Sexual slavery.
Stalking.
Bigamy.
Incest.
Bestiality.
Sodomy.
Rape.


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Property crimes

Breaking and entering.
Arson
Burglary.  Theft.
Larceny.  Grand larceny.
Vandalism.

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Money crimes

Money
Robbery.  Armed robbery.
Fraud.
Blackmail
Extortion.
Bribery
Embezzlement.
Usury.  Loan sharking

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Resisting arrest.
Striking an officer.
Failure to appear in court.
Jumping bail.

In court
Contempt.
Perjury.


Threats.  Intimidation.  Harassment.

Crimes against assets like property and money 



Vice laws.
Drug taking.  Drug dealing.
Illegal gambling.
Prostitution.

Driving while intoxicated.
Drunk in public.

Jay walking.
Disorderly conduct.
Loitering.
Littering.
Disturbing the peace.
Vagrancy.

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Traffic crimes

Parking violations.
Speeding.
Hit and run.
Vehicular homicide.

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Treason.  Sedition.

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White collar crime.
Embezzlement
Misappropriation.
Tax evasion.

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Confidence games.
Writing bad checks.
Forgery.


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barratry
calumny
embracery
contumacy
graft

Internet crime.



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Terrorism
Types of terrorism
	State sponsored terrorism
	Terrorism by any group.
Tactics
	Attacks on "civilians" and other innocents
	Kill people
	Scare people.  Induce fear.
Secrecy and terrorism
	Secret terror
Crime and terrorism
	The terror component of crimes.
History of terrorism
	

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Defenses
Accident, not willful
Insanity
Passion, not pre-mediated

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Punishment theories
Retribution
Deterrence
Incapacitation
Rehabilitation

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What causes people to commit crimes?
Money
Violence as power.

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How to prevent crime?
Educating people not to be targets.
Educating people not to commit crimes.

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Other terms

Willful vs. accidental.
Pre-meditation vs. crimes of passion.
Malfeasance vs. misfeasance.
Inchoate.
Diminished capacity.
False pretenses.

Habeas corpus
Mens rea
McNaughton - insanity defense.  Standards of sanity.


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Business Law


Contracts.  

When is a contract made?
Offer
Acceptance.
Considerations.  
Terms of contract.  Interpretation of terms.
Performance.  Discharge.  
Failure to perform.  Remedies.

Legal vs. illegal contracts.

When is a contract broken?
Breach of contract.

Remedies for breach of contract.
Restitution

Defenses for breach of contract.


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Commercial transactions.
Sales law.  When is it a sale.
Billing.  30 days.
Warranties.  Guarantees.  Returns of merchandise.  Refunds.  Exchanges.


Bankruptcy
Insolvency.
Liquidation.


Labor law.  Laws to protect workers.
Employment
Employer - employee disputes.  
Employment contracts.
Wages
Health and safety.
Unions
Collective bargaining agreements.
Equal opportunity of employment.  Non-discrimination in hiring.


Consumer law.  Laws to protect consumers.
Lemon laws to protect used car buyers.


Anti-trust law.  Laws to prevent monopolies.



Business organization.  
Sole proprietorship.
Partnership.  
Corporation.


Corporate law.  Corporations hire lawyers to defend them.  
Mergers and acquisitions.
Business tax law.


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Agency.

Principal
Agent

Types of agent
Stockbroker.
Literary agent.
Real estate agent.
Manager.


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Tort law.  

Suing

Counter-suing


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Torts

assault
defamation
malpractice
negligence
nuisance
product liability
tresspass
property damage



Negligence torts.  Accidents.
	Malpractice
	Product liability

Elements of negligence:  Duty of care.  Breach.  Injury.  Cause.
Negligence per se
Res ipsa loquitor

Intentional torts.  Not a matter of negligence.  Not accidental.
	Invasion of privacy
	Slander and liability

Liability.
Strict liability
No fault liability.
Vicarious liability

Damages.
Putative damages.
Compensatory damages.


Types of torts.  Torts against persons, property and businesses.

Torts against person.  
Defamation: libel and slander.
	Libel
	Slander
Privacy
Assault
Battery
False imprisonment
Invasion of privacy
Intentional emotional distress


Torts against property.  
Trespass
Conversion
Nuisance.

Torts against business.  
Unfair competition
Misappropriation of funds
Misappropriation of trade secrets
Interference with contractual relations.
Malicious prosecution
Abuse of process.
Product liability.
Worker safety.
Privileged communication.  With lawyer.  With doctor.

Examples of common tort cases.
Slip and fall.
Malpractice.
Injury on the job.


Other terms
Duty
Negligence
Due care.
Reasonable.
Foreseeable.
Act of god.


Omission
commission
assumption of risk.
Informed consent.
Malice.
Mental anguish.
Pain and suffering.

Sue.  Suing.


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Property law.  

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Types of property

Public property
Private property

Tangible property
Intangible property
	Intellectual property

Movable property
	Land
	Buildings
Immovable property.


Property requiring deeds or titles.
	Land.  Cars.  Boats.
Property not requiring deeds or titles.



Real property.  Land.  

Personal property.  Stuff, things.
	Intangible
	Tangible
		Fixtures
		Bailments

Transfer of title of property.  Conveyances.
Sale.  
	Closing.
Gift
Abandoned and lost
Descent and distribution.

Title.
Deed.
Possession.
Easements
Liens
Encumbrances.
Bailments.
Chattel
Escrow
Public commons.
Devolve.
Default.
Fealty.
Holder.
Premises


Landlords and tenants.  Rights and duties of each.
Leases
Termination of lease.  
Eviction.

Ownership
Co-ownership
Joint tenancy
Tenancy in common
Tenancy in partnership
Condominiums and Cooperatives
Community property.

Adverse possession.  When you don't really own the property.
Eminent domain.
Deeds


Mortgages.  Bank lends money to buy a house.
Collateral

Foreclosures.  When you can't pay your mortgage.

Zoning laws

Condemned property.

Possession
Hostile possession
Notorious possession.

Licenses.

Intellectual property
Copyright
Patent
Trademark

Fair use.




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Environmental law.

The air is an international issue.
Air pollution crosses national boundaries.

The ocean is an international issue.
Ocean pollution crosses international boundaries.

Animal rights laws.
Animals have rights.



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Family law.  

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What is the legal definition of a family?

What are the legal rights and obligations of a family?

Can there be a one parent family?  Yes.

Can there be a family with two gay parents? Yes.

Can there be a legal family without a legal marriage?



Marriage.
What is the legal definition of marriage?
When is marriage legally binding?
How does the legal status of a person change when married.
	Women retain full rights when married.

Domestic partners.
Common law marriage.

Cohabiation

Divorce.  
Alimony.  Palimony.  
Custody of Kids.
Child support.
Spouse support.
Paternity suits.  
Children's rights.

Children
Legitimacy
Adoption.  Adopting.  Putting up for adoption.
Custody

Intestate laws.
Succession.
Descent.

Estate.  You die and leave an estate.
Probate.
Wills.
Validity of a will.
Execution of a will.  Who is assigned executor of a will.
Trusts.  Trustifarians.  

Heir.  
Bequest.
Beneficiary.
Inheritance.
Endowments.
Foundations.
Probate.
Testament.  Last will and testament.





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HISTORY OF LAW

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History of theory of law.  
History of philosophy of law.  
(see history database)

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History of practice of law.
History of legal systems.

Reasoned law.  Rather than whim.

Written law.  Rather than unwritten.

Public law.  Rather than secret courts.


Hammurabi - among the first written, public law.

Greek law and Roman law

Civil law
French law
German law

Common law
English law
American law

Other interesting law systems


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