The information I am about to share comes directly from the notes I take while meeting orientation checklists. It is important to note that I could unintentionally share some faulty or not fully represented content based on the readings. Additionally, it is important to understand that this article is unedited, serving the sole purpose of maintaining my course notes. This article will be discussing the different types of law that will be studied in law school.
Reading Notes
This reading comes from the book What Every Law Student really needs to Know by Tracy E. George and Suzanna Sherry.
Types of Law
Adversarial v. Inquisitive
The reading discusses that the United States differs from most countries because it follows an adversarial approach to the legal system. Other countries follow an inquisitive approach which means the judge follows an active role in legal research and determining the outcome of a case. In an adversarial approach, the lawyers take the main role of legal research and develop arguments solely defending their position. Additionally, the US relies mostly on juries to resolve matters of dispute. So, one of the largest differences between the US and other countries is the us of an adversarial approach with decisions being decided by juries.
Common v. Civil Law
Another way the United States differs from other countries is the reliance they have on Common Law. Common Law is the use of past precedent in making legal decisions. If there is a statute involved, Common Law will review the statute and decisions made based on that statute. If there is no statute involved, Common Law relies solely on other cases that have dealt with that law in the past.
Conversely, Civil law relies solely on the statutes involved in a case. If a law is violated and brought before the court, the judge will review the statutes at play to make a decision. If there is no direct statute at play, the judge will review statutes that are more broad.
The reading by George and Sherry uses an example of a cyclist who was fined for riding a bike in the park and challenges the fine in court. If the judge were to review the case based on common law, they would first see if there are statutes at play, but also see if there are any other cases where cyclists challenged a fine for riding a bike in a park. If there were no other city ordinances, they would review cases related to bike safety, public safety, etc.
Private v. Public Law
Public law is often defined as rules between a government and another party. Private law is often defined as the rules between private individuals, such as an agreement between corporation and corporation.
Often, private and public law intersect, which could make it challenging to determine which is public and which is private. The reading outlines a good example I will share here. A corporation needs to abide by public law by ensuring that they don’t discriminate against employees in their actions. If this happens, either the employee or the government could sue for a violation of public law. However, if an employee has a dispute about their agreed upon salary, the employee could sue for a violation of a breach of contract (falls under private law)
Substantive v. Procedural Law
This section came from the orientation video, not the reading. Procedural law covers “how to use the legal system.” What are the rules, the methods, and procedure? This discusses how much to charge people, how the court runs, gathering evidence, etc.
Substantive law on the other hand discusses how people behave and public norms. For example, this focuses on what the crime is by describing the intents of the individual committing the crime.
Courts
Trial Courts
Depending on the state, trial courts go by many names, but are commonly known as United States District Courts. Trial courts are the lowest court system and are the only courts where a trial with a jury may occurs. They differ from municipal courts, probate courts, and similar because of their relation to state instead of federal jurisdiction. Each state has at least one district court and at most 4 district courts depending on the population of the state.
Court of Appeals
If you file suit and lose in a trial court, you can take the case to an appellate court. These courts are divided by 12 geographical circuits described by the United States government. Depending on where your trial court was determines which circuit the appeal will take place in.
The Supreme Court
If a party is still not satisfied with the outcome of the case, they can take it up to the Supreme Court for a final ruling. However, the court can be mostly discretionary in which cases they hear, meaning they can pick and choose which ones to review. There are a few instances where the court is mandated to hear cases. Sometimes there are statutes that require the Supreme Court to hear certain types of appellate cases. Other times the court has original jurisdiction, meaning the case is first litigated in the Supreme Court (often because of disputes between states). What the Supreme Court says is final, unless they overturn the ruling in a future case.
Litigation
We should reshape our view of litigation because most lawyers don’t make it to the trial part of litigation. For civil suits, most parties may not bring a dispute or settle. If they don’t settle, discovery (the collection of evidence) may be so expensive a party will then settle. If not, about 2/3rds of cases are only decided by a jury. With the other 1/3rd, a judge can decide a case, or the parties may agree to not rely on a jury. In total about 1.5% of civil disputes ever see a courtroom.
For criminal cases, about 90% of defendants make a plea deal, where they accept lower charges or sentence for a confession or other information (often used to reduce the expense and time of trial).
Remedies
There are two types of remedies: Monetary (also known as damages) and equitable. Damages are used to reimburse a party for monetary costs to the case and trial expenses. Equitable remedies may be orders not to build a fence or a restraining order.
Takeaways
Related to the readings: There are several types of law from public to private and civil and common law. The key to understanding law is by evaluating the relationships between these types of law. We also read about litigation, the cost of litigation, and the types of courts that have jurisdiction.
Related to note taking: This was my first experience taking notes based on classroom readings. I took my notes as I read. Although I gained an excellent grasp of the information shared, the time it took to take these notes was extensive. In the future, I will be taking my notes at the end (not during) my readings. This will help me recall the most important information while being efficient with my time.
