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Law - Meaning and Basic:
- The term law can be defined as a set of rule and regulation introduced to govern the conduct of a person in the society.
- The legal structure of any country includes a primary and secondary source of law. The primary law in context with USA legal structure is Federal Constitution and law maid under the authority of Federal Constitution. The Federal Constitution is the supreme law of the country. It contains fundamental rights and obligations of USA citizens.
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Classification of Law:
Taking into account the legislature power, enforceability and sources the law can be classified as primary law, secondary law and uniform law.
a) Primary Law:
The Primary Law means the law derived from the primary sources of law. It includes federal Constitution, Statutes and Administrative Law. A constitution is a fundamental set of principles around which all other law is derived and organized. It is regarded as the supreme law of the country. In context with the legal system of the USA, every state in the U.S. and the nation as a whole has a Constitution. It empowers federal and state government to enact a law on various subject matters. The law enacted by federal and state government is termed as statues. The statutes are the formal written law passed by a legislative body.
b) Secondary Law:
As noted above, the power to enact law is with the federal or state parliament; however, the American Constitution also empowers federal or state legislature to delegate lawmaking power to various government agencies. The government agencies will draft rules and regulations as per their requirement. The set of rules and regulation made by government agencies are considered as secondary law.
c. Administrative Law:
The Administrative Law, in this context, is the branch of public law that deals with establishment, function, power and duties of various government agencies. The Administrative law provides detailed rules regarding the manner of operation of different government agencies and the remedies available to the public in a case where the general public is denied with certain public benefits. The Social Security Commission can be taken as an example of administrative law. It includes rules, orders and decision issued by administrative authorities of US government. The administrative law is a part of the delegated legislation. The government agency derives power to formulate rules and issue an order from various state and federal legislation.
d. Common Law:
The common law is set of legal rules established by various judicial pronouncements. It includes judgments given by various courts in the USA.
e. Uniform Law:
In American legal system, both federal and state government has the power to enact statutes on various subject matters. The division of power under federal constitution exclusively empowers the federal government to enact a law on some topics, on the other hand, enactment of the law of some topics are under the exclusive power of state government. Hence different state governments enact a different law on the same subject matter. This has created the need for a uniform law on various subject matters in order to promote commerce and trade. The National Commission on Uniform Law draft the model law on the subject matter and the same is adopted by the different state in order to maintain uniformity on the law. This type of enactment is termed as uniform law.
The Hierarchy of Law and Conflict between different laws:
- The federal constitution is the supreme law of the USA. The federal law comes after federal constitution. Thus, federal law cannot override US constitution. As the US as adopted federal system, every state has its own constitution. The state constitution is subject to US federal constitution and federal laws; that is to say, it cannot override the federal constitution and federal laws. The administrative law of state government is subject to the state constitution. The common law i.e. judicial pronouncement must be in accordance with US federal and the state constitution. It can override any law if the law is in conflict with the constitution. However, in case if federal or state law is in conformity with the constitution, the judicial authority cannot override the law.
- The federal constitution is the supreme law of the USA; thus, any enactment of law federal or state government that contradicts with federal constitution will be not be given effect. In order words in case of conflict between federal constitution and federal or state law, federal constitution shall prevail.
Concept of Stare Decisis and the Common Law from ASSIGNMENTHELP.NET
- One of the important sources of law is judicial pronouncement. It is commonly observed that while deciding any case court considers its past judgment. This concept is known as the doctrine of stare decisis. The term stares decisis generally mean "to stand by decided matters". The doctrine of stare decisis requires the court to consider its past decision and judgment while adjudicating issue presented before it. The legal rules established by the court through its decision are termed as precedent. This decision i.e. precedent becomes an example for judges deciding similar issues later on. The court is required to follow its own past decision as well as a decision taken by the higher court; thus, judgment pronounced by US Supreme Court has a binding effect overall its subordinate courts. However, US Supreme Court is not bound by its own decision.
- In this context, it is important to note that to apply this doctrine the facts and circumstances of past and present case must be substantially same. Hence in the case where the circumstances and law have changed over a period of time, the court can even ignore its past judgment. In the same manner, if old judgment becomes useless the court cannot be bound to follow its past ruling. Thus, it can be said that legal precedents are a persuasive authority; the court can use it but are not bound to follow it.
Type of Judicial Opinion:
In American legal system, the judiciary serves as the primary interpreter of the law. The US court used to issue interpretation on various legal issues. The interpretation issued by a court of law act as precedent. This interpretation or decision of the court is known as a judicial opinion. The judicial opinion can be the majority opinion, concurring opinion, and dissenting opinion.
a. Majority Opinion:
It is a judicial opinion that is agreed to by more than half of the members of a court. It is also considered as a decision of the court a majority of members of courts has agreed on the same legal issue. It also set out an explanation and legal reason behind the judgment of the court. In this regard, it is important to note that decision under this case has been taken by a majority of members of the court and with them on the same line of legal reasoning. Here the majority of members of the court are of voting in favor with same reasons.
b. Concurring Opinion:
It is the legal opinion issued by the court where the majority of members have agreed on the same point but with different legal reasoning. In this situation judges used to write concurring opinions. It should be noted that the ultimate decision is with the majority but the legal reason behind reaching conclusion differs amongst judges. The opinions written by judges cannot be viewed as the view of the majority of the members of the court. The concurring opinion joined by the greatest number of judges is termed as plurality opinion.
c. Dissenting Opinion:
The dissenting opinion is the opinion written by one or more judge expressing his disagreement with the majority opinion. In other words, it is the opinion written by a judge who has voted against majority decision. It should be noted that this dissenting opinion is not part of case law and will have no binding effect. It is just an opinion expressed by the judge. This is because the opinion agreed by the majority of judge becomes the decision of the court and regarded as a precedent. However, this can be cited in other legal matter as a persuasive authority while arguing in the court.
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- In the hierarchy of legal system, the constitution is at topmost position. The US federal constitution is the supreme law of USA. It contains fundamental rights and obligations of American citizens and power making authority of federal government. It provides the division of powers between federal and state government and well as a limitation on the power of government. The interpretation of the constitution is important because it helps judiciary to determine the validity of action taken by government agencies and legality of various statutes enacted by federal and state government.
- It also provides guidance to the government at the time of enacting new laws to address the new issue raised. The interpretation of the constitution is also done to examine the lawmaking power of government on different matters. The interpretation is also done to protect fundamental rights of American citizens. It saves American citizens from the unconstitutional act of federal or state government. The interpretation of the constitution is also important to decide the extent of jurisprudence. It empowers American courts to examine the validity of action taken by the American government.
- Thus, being the supreme law, US constitution acts as guiding force for actions of government and protection of fundamental rights of American citizens. Its interpretation helps the judicial authority to implement US constitution in more effective manner.
Jurisdiction of Court:
There are three important pillars of USA legal system namely legislator, executor and judiciary. The US federal constitution provides the proper division of power and accordingly the role of the judiciary is to monitor enactment and implementation law within the country.
In the legal system of United State, the US Supreme Court is at the top in the hierarchy of courts. It is the highest court of the land and all other courts in the United States operate under its supervision. In order to manage the workload efficiently and to provide speedy and effective resolution of the dispute, the constitution provides for the division of work according to which the court can entertain only those legal issues which come under its adjudication power.
The authority of the court to entertain and adjudicate legal issue is termed as jurisdiction. The term jurisdiction of the court is authority of the court to admit, hear and adjudicate case and to issue an appropriate judgment.
The question to determine jurisdiction comes in a case where any matter is produced before the court for judicial review. There arise many situations where the court has to consider the validity of law, rights and obligation of parties to dispute and legality of action taken by the government or government agencies. The process of determination of rights and obligation, the validity of action and validity of the law is considered as a judicial review.
Determination of jurisdiction of the court is considered as one of the important aspects of the judicial review. This is because it is the jurisdiction of the court that determines authority and validity of the decision of the court.
Types of Jurisdiction:
The jurisdiction of the court may be on the basis of territorial or personal. It can appellate or original jurisdiction.
- In Personam: The term in personam jurisdiction indicates the division of power to adjudicate matter on the basis of person or entity. It indicates authority of the court over persons or entities residing or doing business in a particular location. The court can assume jurisdiction if the dispute is between persons or entities residing within a territory over which court has jurisdiction.
- In Rem: The term in rem jurisdiction indicates authority of the court to adjudicate matter without any territorial restriction. It indicates authority of the court over non-resident, over disputed property. It also includes the authority of the court to entertain cross-border dispute.
- Subject Matter Jurisdiction: The jurisdiction over subject matter indicates authority of the court to entertain certain type of dispute. The division of power is made on the basis of a subject matter of dispute. It includes civil and criminal court. In case if the dispute involves criminal matter, it can be entertained by the criminal court only.
The subject matter jurisdiction can be limited or general. The limited subject matter jurisdiction indicates monetary or other limitation imposed on the power of the court to entertain the case. On the other hand, the general subject matter jurisdiction indicates authority of the court over subject matter without any limitation.
- Concurrent and Exclusive Jurisdiction: The term concurrent jurisdiction indicates authority of the court to entertain matter of different subject matters at the same time. The jurisdiction of US federal court is concurrent i.e. power to entertain both civil and criminal case. On the other hand, the exclusive jurisdiction indicates exclusive authority of the court to entertain dispute over the subject matter. For example, US Tax courts have exclusive jurisdiction to entertain tax-related disputes only. Thus, no other court can entertain original jurisdiction over this matter. It also includes US Military Court.
- Original and Appellate Jurisdiction: The term original jurisdiction indicates power to entertain disputed matter for the very first time. Generally, the courts have the lowest cadre in the judicial hierarchy has the power to entertain case for the very first time. The appellate jurisdiction is the authority of the court to reconsider the judgment given by the lower court. The US Supreme Court, US Court of Appeals will have the power to entertain an appeal filed against the order of the lower court.
- Jurisdiction of US federal court: The jurisdiction of US federal court includes the power to entertain a case that involves an alleged violation of a federal statute, regulations, treaty or the Constitution. It has also power to entertain case where the amount of controversy exceeds $75,000 and the lawsuit is between citizens of different states.
Thus, the court can entertain only those cases which come within its power to entertain. The parties to the dispute have to establish that the case comes within the jurisdiction of the court before which matter is presented. The following points must be kept in mind while selecting jurisdiction of the court:
- The subject matter of dispute.
- Amount involved in dispute
- Citizenship of parties to dispute
- Nature of dispute i.e. whether original or appeal case.
Alternate Dispute Resolution:
The dispute between parties to the dispute can be resolved by adopting any of the method prescribed for dispute resolution. The dispute resolution method includes a judicial method and nonjudicial method. The judicial method of dispute resolution requires parties to dispute to institute litigation before a court of law. The court of law, in this method, will adjudicate method and resolve the dispute. The nonjudicial method, also known as Alternate Dispute Resolution, provides various methodologies to settle the dispute without approaching the court. Thus, ADR is alternative to a judicial method to resolve the dispute. In this method parties to the dispute are not required to approach the court for settlement. It includes various methods starting from negation to arbitration. The most important aspect of alternative dispute resolution is its easiness, time and cost-effectiveness.
In this method, the parties to the dispute are required to approach a court of law. The parties are required to submit the petition before the appropriate court having jurisdiction over party and subject matter. The parties are required to appoint an attorney to present their case. The parties to the dispute are also required to deposit court fees. The main advantage of this method is its binding effect and enforceability. The process is carried out according to legal procedure and parties to the case are bound to implement the decision pronounced by the court. The US law also provides a mechanism for enforcement of a decree of the court.
The major disadvantage associated with this method is time and cost. This method many times seems time-consuming and costly as compared to alternative dispute resolution. The method is also rigid as compared to alternative dispute resolution. This method nowhere provides parties to dispute to select a procedure of adjudication, language and judicial authority.
Non Judicial Method or Alternate Dispute Resolution:
The nonjudicial method or alternative dispute resolution method includes the following:
- Negotiation: The negotiation is the easiest method of dispute resolution. It also referred out of court settlement. The parties to the dispute, in this case, try to negotiate with each other. They try to arrive at an acceptable settlement. The main advantage associated with this method is its cost and time effectiveness. The parties need not appoint any third party to resolve the dispute. It is parties who negotiate with each other and try to compromise. It is also flexible as compared to all another method of dispute resolution. After arriving at the settlement, parties will execute a fresh contract with modified terms. However, the biggest disadvantage associated with this method is difficulties associated with its implementation. In case if one of the parties refuses to perform his obligation even after negotiation, the other aggrieved party has to reAssignment another method of dispute resolution.
- Mediation: The meditation method of dispute resolution requires the appointment of a mediator. The parties to dispute appoint mediator. The appointed mediator tries to provide amicable settlement between parties to the dispute. The mediator talks with both the parties to the dispute and will draft settlement scheme. The settlement scheme generally includes somewhat compromise on both the side. The mediator will provide a copy of settlement to both the party for consideration. The parties to the dispute will consider it and will put their signature if they found it appropriate. The advantage associated with this method is again time and cost-effectiveness. The biggest disadvantage of this method is also its nonbinding effect. In case if one of the parties to a dispute refuses to accept settlement scheme; another party cannot compel him to accept and implement. It should be noted that even after its acceptance of settlement scheme if a party refuses to perform his obligation, another aggrieved party has to reAssignment another method of dispute resolution.
- Arbitration: The arbitration is one of the most acceptable alternative dispute resolution methods. The arbitration means formal dispute resolution method where the dispute is resolved through award passed. This method is governed by Arbitrability and the Federal Arbitration Act. This method requires parties to execute arbitration agreement to resolve a dispute under this method. The parties will then appoint an arbitrator, who will examine facts and evidence produced by parties to dispute. The arbitrator will give the opportunity to both the parties to present their case. The decision given by arbitrator is termed as an arbitral award. The main advantage of this method is even though it is a nonjudicial method; the arbitral award binds the parties to dispute. This method is flexible, time and cost effective. It allows parties to decide qualification, a method of appointment of an arbitrator and his function. It also allows parties to dispute to decide adjudication method, frequencies and language of arbitration. The arbitration law also provides a method for its implementation. The only disadvantage associated with this method is its limited judicial review. The arbitral award will have a limited judicial review.
The Judicial Process:
The Judicial method for dispute resolution requires parties to dispute to approach a court of law for settlement. The parties are required to submit the petition before the appropriate court having jurisdiction over party and subject matter. The parties are required to appoint an attorney to present their case. The parties to the dispute are also required to deposit court fees. The main advantage associated with the process is the binding effect of court’s order and effective mechanism for its enforceability.
At this juncture, it is important to note disadvantages associated with this system. This method many times seems time-consuming and costly as compared to alternative dispute resolution. The method is also rigid as compared to alternative dispute resolution. This method nowhere provides parties to dispute to select a procedure of adjudication, language and judicial authority. The adjudication at the court of law is carried out as per the rules prescribed under Federal Rules of Civil Procedure. Hence before the institution of the law suit, it is important to examine worthiness of this process. In this case, a party may adopt alternative dispute resolution process and can go for a settlement. This may save parties from the lengthy and time-consuming process. As mentioned above the trail at the federal court is carried out as per the civil procedure rules. The rule provides, in detail, the process to be carried out for adjudication.
The rule provides, in detail, the process to be carried out for adjudication.
The civil rules define the aggrieved party as plaintiff. The term plaintiff means the person who has suffered any loss on account of the action of another party. The person before whom the allegation was made is termed as a defendant. The defendant is the person who is at fault. The trial process starts with pleading. The term pleading means written allegation filed by plaintiff and answer, reply and counterclaims raised by the defendant.
The first step of trail process is the submission of the plaint by the plaintiff. The term plaint is written a statement of allegation filed by the plaintiff. It is also known as plaintiff’s complaint. The complaint filed by the plaintiff must indicate all the allegations and claim. The plaint must be filed with the court having jurisdiction to adjudicate the matter.
Upon receipt of the complaint, the court will serve the copy of complaint and summons to submit a reply within the stipulated time. The summons issued by the court will contain an order to submit a response within due time; failing to which defendant will be assumed to be in default. It should be noted that to file a reply to the complaint is right as well as the obligation of the defendant. The defendant is under obligation to submit reply of compliant.
Upon receipt of the complaint; defendant files his written response to the complaint. The written response filled by defendant contains answers to the allegation and/or counterclaim. In his written reply the defendant can admit any true claim, deny the wrong claim and may raise allegation against the plaintiff. This flow of document is often referred as written pleading.
The parties to a dispute can forward a different type of motion to the court. The term motion is defined as a procedural device to bring a limited, contested issue before a court for decision. The parties to the dispute will request honorable justice to consider the case and issue a decision on the case. The federal civil rule allows both the parties i.e. plaintiff and defendant to file a motion. The federal civil rules recognize different types of motion as highlighted in below table:
|Type of Motion||Who can submit||Purpose|
|Motion to dismiss||Defendant||In case if the defendant is denying allegations made against him, he may file a motion to dismiss instead of an answer. Under this motion, defendant contends that the plaintiff's claim is not one on which the court can rule. He usually challenges the legality of the suit.|
|Motion for Judgment||Defendant||This motion is filed after the judgment is delivered by the jury. The motion is filed to request the jury to reconsider the judgment. This is a rare motion that is only made if there are no reasonable grounds on which the jury could have reached its verdict.|
|Motion Summary Judgment||Either by defendant or plaintiff||This motion is filed to request the court of law to issue an order without trail. This motion can be made before trail begins. It can be made if none of the facts of the case are in dispute.|
|Motion to suppress||Either by defendant or plaintiff||This motion is filed with the intention to determine the admissibility of evidence. It is presented to decide what evidence can and cannot be presented to a jury in court.|
|Motion to change venue||Either party||This motion is to request the court for a change of jurisdiction or court adjudicating trail.|
The federal civil rules also provide for a class action. The class action or class suit means the civil suit filed by many plaintiffs against one defendant on the same cause of action. The class action enables a court of law to adjudicate matter on consolidate basis. It saves the time for court and parties to dispute. This mechanism also avoids multiple litigations.
The adjudication is carried out either by bench trail or jury trial. The bench trail is carried by judges appointed under the law. The jury trail is carried out before a jury. The Jury selection process is carried out as per federal civil rules. Judge and attorneys ask a panel of prospective jurors a series of questions to find disqualifying biases and prejudices or to get a feel for the person. The parties to the dispute will present case before a jury.
The adjudication starts with an opening statement from the plaintiff. The opening statement from the plaintiff is with the intention to establish loss caused to him due to the action of the defendant. The court will then proceed for examination of evidence produced by plaintiff. At this juncture, the defendant is allowed to cross-examine the witness or other evidence produced by plaintiff. The process of examination and cross-examination is carried out with the intention to discover admissibility and relevancy of evidence with the subject matter of dispute. The plaintiff will present the motion for directed verdicts.
After the plaintiff statement, the defendant will be given an opportunity to present his case. He will be allowed to present his arguments and evidence in support of his case.
After defendant arguments; both the parties will be given an opportunity to present a closing statement. The closing statement is the statement made by each party establishing their points and merits for the case and requesting the court to pass a favorable order.
Bench or Jury will take a decision and the same is submitted to the court. The Judge will then pronounce judgment taken by jury.
Bench or Jury will take a decision and the same is submitted to the court. The Judge will then pronounce judgment taken by jury.
The federal civil rule also provides for motion of new trial or Judgment NOV. It gives an opportunity to present case in case if any party has initially lost due to an unreasonable or erroneous decision by the jury.
The aggrieved party may prefer an appeal against the order of trail court. The appeal can be filed with the federal court of appeal. The party intending to file an appeal must file a notice of appeal within the time given. The documents to be filed in case appeal include notice of appeal, record or transcript of the proceedings, and the "briefs" outlining the legal arguments.
The appellate court will entertain an appeal only on the question of law. This is because the trail court is considered as a final fact-finding authority.
The federal civil rule may also provide for a mechanism for enforcement. The party may prefer writ of execution for enforcement of the judgment. This writ is filed with the intention to request the court for execution of order passed by it.
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How tough are the topics in Law?
According to Justin Austin, law is defined as "A body of rules, fixed and enforced by a sovereign political authority." Likewise, there are number of statements that defines this field of academic curriculum. Overall, it is a set of rules that is engraved in judiciary system of every nation, in order to maintain peace, harmony and progress in the society and the country.
Law is a theoretical subject that have number of topics and sub-topics. Every topic in law is elaborated with words and sentences that requires use of dictionary and professional guidance. Some of the subjects included in this field are:
Criminal law: Criminal is the person who commits crime or he does the work that is not permitted according to the judiciary system of the country. Hence, the law that applies to criminal act is sectioned under criminal law. This subject covers all the laws that are prevalent for different crimes.
Legal research: This subjects covers those area that require research on legal matters or need to check the legal precedent. In other words; it is the process of researching on the information that is required to make decisions that ought to be legally taken.
Obligations and contracts: The obligations that arise due to certain contract between two parties are covered in this section of law.
Constitutional law: This subject provides information on the law framed and followed by particular nation or the country.
International human right: This sections deals with the rights that are provided to international citizens which in turns does not violate human rights of that country.
Children’s right law: Children of any nation are given certain rights. Therefore, this portion of children right law focuses on the rights that are provided to children of certain age group.
These are only the few points that highlights part of some subjects included in the field of law along with the brief idea on the section they cover. Law students need to remember every sections and points that are assigned to them. They need to focus on every single material and instruction that is engraved in the text-book.
Most importantly, to become perfect in this field they need to struggle in memorizing portion of their syllabus that includes every sections, rules, amendments etc. So, undoubtedly students pursuing law have to cover large area of this subject to master in this field.
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