week 2
The Law in Action
1
Automatic vs an Involuntary Action of the Decision-Maker
The law is not simply a mechanical process into which ones feeds elements of conflict and like a vending machine, that draws an automatic response.
The law addresses those demands or elements of jurisprudence, legal reasoning, and judicial policymaking that, together with the law in the books, make up the law in action.
Constitutional Handcuffs’
The First Amendment that protects free speech and the Forth Amendment that protects unwarranted searches and seizures restricts only government action and not private corporations.
It’s the public administrator that’s handcuffed by the constitution.
3
Law as a System
Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior.
It has been defined both as "the Science of Justice" and "the Art of Justice".
Law is a system that regulates and ensures that individuals or a community adhere
to the will of the state.
State-enforced laws can be made by a
collective legislature or by a single legislator, resulting in statutes,
by the executive through decrees and regulations,
or established by judges through precedent, normally in common law jurisdictions.
Private individuals can create legally binding contracts, including
arbitration agreements that may elect to accept alternative arbitration to the normal court process.
The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein.
The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.
Purposes of Law
For some the law exist to provide justice in the society as a whole and for the specific participants in the case of a few.
The problem is to define justice as a concept and then to apply it in a particular case.
Some see the purpose of law as an instrument to manage change.
A third purpose of law is to maintain stability.
While the law does allow for change it is inherently conservative.
A fourth purpose of law is to provide for orderly and peaceful resolution of disputes.
Law is also a means of facilitating private arrangements.
Finally the law is a mechanism that maintains a sense of historical continuity in the society.
Rule According to a Higher Law
The rule according to a higher law means that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice.
Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust.
Within the context of law, "social purpose" is a scheme of statutory construction declaring that a statute should not be construed in a way that would violate normal societal values or good.
A Tip for Public Managers
Stakeholder management is a critical component to the successful delivery of any project, program or activity.
A stakeholder is any individual, group or organization that can affect, be affected by, or perceive itself to be affected by a program.
Stakeholder management creates positive relationships with stakeholders through the appropriate management of their expectations and agreed objectives.
Stakeholder management is a process and control that must be planned and guided by underlying principles.
The first step in stakeholder analysis is to brainstorm who the stakeholders are.
As part of this, think of all the people who are affected by your actions, who have influence or power over it, or have an interest in its successful or unsuccessful conclusion.
Remember that although stakeholders may be both organizations and people, ultimately you must communicate with people. Make sure that you identify the correct individual stakeholders within a stakeholder organization. Stakeholder management is comprised of four steps:
Identify, recognize and acknowledge stakeholder;
Determine their influence and interest;
Establish communication management plan
Influencing and engaging stakeholder
Schools of Jurisprudence
Over the centuries various legal scholars have developed substantial theories of law based on one or more points of view or purposes. These writings are associated with what can be called schools of jurisprudence.
Natural Law Jurisprudence
Analytical Jurisprudence
Historical Jurisprudence
Sociological Jurisprudence
Realist-Behavior Tradition of the Law
Political Jurisprudence
Deterministic Jurisprudence
Justice Cardozo’s Eclecticism
Legal Reasoning
There is a need to place constraints on the decision-making processing order to regularize the process of legal problem solving
in order to permit the orderly development of the law while at the same time maintain stability of the legal system.
Most of these rules are imposed by the courts themselves and policed by the judges.
The following are some of the guidelines for judges.
Institutional influences on decision-making
Rules of self-restraint in federal court
The process of hearing a case
Decision-making guidelines for Judges.
Institutional influences on decision-making
Rules of self-restraint in federal court
The process of hearing a case
Institutional Influences on Decision-Making
A significant characteristic of the courts is that they are not self –starters. They must wait for the cases to be bought before them at the proper time and in the appropriate manner for resolution.
When a case is brought to a court, it must be dealt with as it stands, not as the judge would like it to be presented.
Another factor that influence judicial decision-making is “equity” which allows the court to deliberate inequality in the interest of justice.
Social equity is a concept that applies concerns of justice and fairness to social policy.
Since the 1960s, the concept of social equity has been used in a variety of institutional contexts, including education and public administration
Another major area of influence is “legal fiction” which permits one to make assumptions about the world that are not real in an empirical sense for legal purposes.
A major area that influences the court is the doctrine of “stare decisis” or the rule of precedent.
Basically, the decision is predicated on the existing rules of law at or at the time the actions were taken.
Rules of Self-Restraint in Federal Court
Over the years the United States Supreme Court has developed a set of rules governing legal decision-making in federal court.
These rules, sometimes referred to in general terms as Ashwander rules, describe
the kinds of controversies that the courts will resolves and caveats to be observed by judges in dealing with them.
Although there are a number of specific rules of self-restraint, but most fall into two categories.
First is there authorization for the federal courts to decide actual “cases and controversies’ that arise under the Constitution or federal law.
Second, is this kind of case that the courts can hear and do something about?
Whether a particular case presents legal questions that are within the jurisdiction of the court and justiciable must be decided before the court
reaches any decision on the substance of the claims made by those involved in the case.
Note: Certiorari, is a writ issued by a court that agrees to review.
A certiorari is issued by a superior court, directing an inferior court, tribunal, or other public authority to send the record of a proceeding for review.
The Process of Hearing a Case
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency or a Parliamentary committee.
A hearing is generally distinguished from a trial in that it is usually shorter and often less formal.
In the course of litigation, hearings are conducted as oral arguments in support of motions, whether to resolve the case without further trial on a motion to dismiss or for summary judgment, or
to decide discrete issues of law, such as the admissibility of evidence, that will determine how the trial proceeds.
Limited evidence and testimony may also be presented in hearings to supplement the legal arguments.
In the United States, one aspect of the "due process revolution" is that many administrative decisions that were once made much less formally must now
be preceded by a hearing.
An important step in this development was the Supreme Court decision in Goldberg v. Kelly.
There the Court held that an agency could not terminate a recipient's welfare benefits without a pre-termination hearing.
The decision also illustrated that what constitutes a "hearing" can depend on the context.
In Goldberg, the goal of a speedy decision was held to "justify the limitation of the pre-termination hearing to minimum procedural safeguards," which included such basic matters as the right to appear and to cross-examine witnesses,
but did not include "a complete record and a comprehensive opinion.
Contested Case Hearing
Contested case hearing is the name for quasi-judicial administrative hearings governed by state law.
State agencies that make decisions that could affect people's “rights, duties, and privileges” must have a process for holding contested case hearings.
The purpose of these hearings is to provide the decision-makers with the most complete and relevant information they need
to make a proper decision.
These hearings are like an informal court proceeding. They have three parts:
I. Pre-hearing: where the parties and scope of the hearing is decided
II. Hearing: where witnesses are called to testify and evidence is submitted
III. Post-hearing: where the parties propose and advocate for a particular outcome
After these three phases are complete, the decision-makers decide to either approve, deny, or approve with conditions whatever it is that is being proposed.
The decision can either be made at the final hearing or a later public meeting
https://en.wikipedia.org/wiki/Contested_case_hearing
Amicus Curiae / Black Letter Laws
An amicus curiae (literally, "friend of the court"; plural, amici curiae) is someone who is not a party to a case and may or may not have been solicited by a party and who assists a court by
offering information, expertise, or insight that has a bearing on the issues in the case;
and is typically presented in the form of a brief.
The decision on whether to consider an amicus brief lies within the discretion of the court.
The phrase amicus curiae is legal Latin.
In common law legal systems, black letter laws are the well-established legal rules that are no longer subject to reasonable dispute.
Some examples are the "black-letter law" of contracts or the "black-letter law" of trademarks. Black-letter law can be contrasted with legal theory or unsettled legal issues.
Logic in the Law
The techniques of decision-making that’s employed to arrive at a determination of the meaning of the law in a particular case are known collectively as “legal reasoning”.
Basically, there are three different sets of techniques utilized:
Application of constitutional principles;
Statutory interpretations;
Common law development
Application of constitutional principles
Statutory interpretations
Common law development
Legal Reasoning
Application of Constitutional Principles
The primary difficulty in understanding the meaning of the Constitution is that a fundamental law designed to remain useful over a long period must be rather general in terms.
James Madison state that it would be impossible for the framers to predict all possible developments that would call for a special interpretation by the Congress.
Interpretation of the Constitution involves, at the very least,
a consideration of the language of the document,
consideration of the intent of the framers to the degree that it is possible to discern it,
the circumstances that have given rise to the problem under consideration,
and the possible need for change in the law of the Constitution.
Statutory Interpretations
Statutory interpretations are, in essence, conversations between branches of state or federal governments.
Statutory interpretation is the process by which courts interpret and apply legislation.
Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning.
But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge.
To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.
In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and
to delegated legislation such as administrative agency regulations
Common Law
In law, common law (also known as judicial precedent or judge-made law, or case law) is that body of law derived from judicial decisions of courts and similar tribunals.
The defining characteristic of “common law” is that it arises as precedent.
In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts,
and synthesizes the principles of those past cases as applicable to the current facts.
If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis).
If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty
to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision).
The court states an opinion that gives reasons for the decision,
and those reasons agglomerate with past decisions as precedent to bind future judges and litigants.
Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch.
Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.[
Judiciary: a Branch of Government
It is important to understand some of the relationships among courts as well as between courts and other branches of government at the federal, state, and local levels.
Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in common law jurisdictions because the supreme court overturn laws made by their legislatures via a process called judicial review.
For example, the United States Supreme Court has decided such topics as the legality of slavery as in the Dred Scott decision, and desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision.
As a result, how justices interpret the constitution, and the ways in which they approach this task has a political aspect.
Terms describing types of judicial interpretation can be ambiguous; for example,
the term judicial conservatism can vary in meaning depending on what is trying to be "conserved".
One can look at judicial interpretation along a continuum from judicial restraint to judicial activism,
with different viewpoints along the continuum.
https://en.wikipedia.org/wiki/Judicial_interpretation
The Administrative Justice System
An administrative court is a type of court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are considered separate from general courts.
The administrative acts are recognized from the hallmark that they become binding without the consent of the other involved parties. The contracts between authorities and private persons fall usually to the jurisdiction of the general court system. Official decisions contested in administrative courts include:
taxation
dispensation of monetary benefits
environmental licenses
building inspection
child custody
involuntary commitment
immigration decisions
summary public payments (other than fines imposed by general courts)
An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates the claims or disputes (in other words, ALJ-controlled proceedings are bench trials) involving administrative law.
ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.
And depending upon the agency's jurisdiction, proceedings may have complex multi-party adjudication, as is the case with the Federal Energy Regulatory Commission, or simplified and less formal procedures, as is the case with the Social Security Administration.
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government.
Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda.
Administrative law is considered a branch of public law.
As a body of law, administrative law deals with the decision-making of the administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as
police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.
Courts have define administrative law in four parts. Namely, the legal rules and principles that:
(1) define the authority and structure of administrative agencies;
(2) specify the procedural formalities employed by agencies;
(3) determine the validity of agency decisions;
(4) define the role of reviewing courts and other governmental entities in relation to administrative agencies.
https://en.wikipedia.org/wiki/Administrative_law#United_States
United States Administrative Law
United States federal administrative law encompasses statutes, common law, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define
the extent of powers and responsibilities held by administrative agencies of the United States Government (both executive branch agencies and independent agencies).
The executive, legislative, and judicial branches of the U.S. federal government cannot always
directly perform their constitutional responsibilities.
Specialized powers are therefore delegated to an agency, board, or commission.
These administrative governmental bodies oversee and monitor activities in complex areas, such as
commercial aviation, medical device manufacturing, and securities markets.
U.S. federal agencies have the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power
https://en.wikipedia.org/wiki/United_States_administrative_law