1. Law can be classified
in a variety of ways. One of the most classifications divides law into civil
and criminal. A basic definitionnof civil law is “the body of law having to do
with the private rights of individuals”. As this definition indicates, civil
law is between individuals, not the
government. Criminal law involves regulations enacted and enforced by
government action, while civil law provides a remedy for individuals who need
to enforce private rights against other individuals. Some examples of civil law
are amily law, wills and trusts, and contract law. If individuals need to
resolve a civil dispute, this is
called civil litigation, or a civil lawsuit. When the type of civil litigation
involves an injury, the injury action is called a tort.
It
is important to distinguish between civil litigation and criminal prosecution.
Civil and criminal cases share the same courts, but they have very different
goals, purposes, and results. Sometimes, one set of facts
gives way to civil lawsuit and criminal prosecution. This does not violate
double jeopardy and is actually quite common. (Yuan)
2. In civil litigation, an injured party sues
to receive a court-ordered remedy, such as money, property, or some sort of
performance. Anyone who is injured—an individual, corporation, or other
business entity—can sue civily. In a civil litigation matter, the injured party
that is using is called the plaintiff. A plaintiff must hire and pay for an
attorney or represent himself or herself. Hiring an attorney is one of the many
costs of litigation and should be carefully contemplated before jumping into a
lawsuit.
The alleged wrongdoer and the person or entity being sued
are called the defendant. While the term plaintiff
is always associated with civil litigation, the wrongdoer is called a defendant
in both civil litigation and a
criminal prosecution, so this can be confusing. The defendant can be any person
or thing that has caused harm, including an individual, corporation, or other
business entity. A defendant in a civil litigation matter must hire and pay for
an attorney even if defendant did nothing
wrong. The right to a free attorney does not apply in civil litigation, so
a defendant who cannot afford an attorney must represent himself or herself.
(Alesandro)
3. The goal
of civil litigation is to compensate the plaintiff
for any injuries and to put the plaintiff back in the position that person held
before the injury occurred. This goal produces interesting results. It
occasionally creates liability or an obligation to pay when there is no fault
on behalf of defendant. The goal is to make the plaintiff whole, not to punish,
so fault is not really an issue. If
the defendant has the resources to pay, sometimes the law requires the
defendant to pay so that society does not bear the cost of the plaintiff’s
injury.
A defendant may be liable without fault intwo situations.
First, the law that the defendant violated may not require fault. Usually, this
is reffered to as strict liability. Strict liability torts do not require fault
because they do not include an intent component. Another situation where the
defendant may be liable without fault is if the defendant did not actually
commit any act but is associated with the acting defendant through a special relationship.The policy of
holding a separate entity or individual liable for the defendant’s action is
called vicarious liability. An example of vicarious liability is
employer-employee liability, also reffered to as respondeat superior. If an
employee injures a plaintiff while on the job, the employer may be liable for
the plaintiff’s injures, whether or not the employer is at fault. Cleary,
between the employer and the employe.The
employergeerally has the better ability to pay. (Irfan)
4. The goal of civil litigation is to
compensate the plaintiff for injuries, so the plaintiff must be a bona fide
victim that can prove harm. If there is no evidence of harm, the plaintiff has
no basis for the civil litigation matter.An example would be when a defendant
rear-ends a plaintiff in an automobile accident without causing damage to the
vehicle (property damage) or physical injury. Even if the defendant is at fault
for the automobile accident, the plaintiff cannot sue because the plaintiff
doesn not need compensation for any injuries or losses.
Often the plaintiff
sues the defendant for money rather than a different, performance-oriented
remedy. In a civillitigation matter, any money the court awards to the the
plaintiff is called damages. Several kinds of damages maybe appropriate. The
plantiff can sue for compensatory damages, which compensate for injuries ,
costs, which repay the lawsuit expenses, and in some cases, punitive damages.
Punitive damages, also refferedto as exemplary damages, are not designed to
compensate the plaintiff but instead focus on punishing the defendant for
causing the injury. (Kristanti)
5. The first source of law is constitutional
law. The constitutions are applicable in every state: the federal or US
Constitution, which is in force throughout the United States of America, and
the state’s constitution. States’ constitutions typically focus on issues of
local concern. The purpose of federal and state constitutions is to regulate government action. Private
individuals are protected by the Constitution, but they do not have to follow
it themselves.
The federal and state constitutions are both written with
words that can be subject to more than one interpretation. Thus there are many
exceptions to any constitution’s protections. Constitutional protections and
exceptions are discussed in detail in Chapter 3 “Constitutional Protections”.
For safety and security reasons, we see more exceptions to constitutional
protections in public schools and prisons can mandate a certain style of dress
for the purpose of ensuring safety. Technically, forcing an individual to dress
a specific way could violate the right to self-expression, which the First
Amendment guarantees. However, if wearing a uniform can lower gang-related
conflicts in school and prevent prisoners from successfully escaping, the
government can constitutionally suppress free speech in these locations. (Yuli)
6. The second source of law is statutory law.
While the Constitution applies to government action, statutes apply to ad
regulate individual or private action. A statute is a written
(and published) law that can be enacted in one of two ways. Most statutes are
written and voted into law by the legislative
branch of government. This is simply a group of individuals elected for this
purpose. The US legislative branch is called Congress, and Congress votes
federal statutes into law. Every state has a legislative branch as well, called
a statue legislature, and a sate legislature votes state statutes nto law.
Often, states codify their criminal statutes into a penal code.
State citizens can also vote state statutes into law.
Although a state legislature adopts most
state statutes, citizens voting on a ballot can enact some very important
statutes. For example, a majority osCalifornis’s citizens voted to enact
California’s medicinal marijuana law. California’s three-strikes law was voted
into law by both the state legislature and California’s citizens and actually
appears in the California Penal Code in two separate places. (Laras)
7. The original intent was for federal
government to be a limited government, with the bulk of legulatory authority
residing in the states. The only crime Congress is specially
authorized to punish are piracies and
felonies on the high seas, counterfeiting, and treason; however, case
precendent has expanded the federal government’s power to enact criminal laws
based on commerce clause and the necessary and proper clause. Still, there must
be some connection to an issue of
national character and interstate commere, or the federal government will
overstep its authority. In general, federal criminal laws target conduct that
occurs on federal property or conduct involving fedral employees, currency,
coin, treason, national security, rights secured by the Constitution, or
commerce that crosses state line. Currently, over five hundred crimes are
listed in Part I, Title 18 of the United States Code, which codifies criminal
laws for the federal government.
The Us Constitution designates the states as the Primary legulatory authority. This is
clarified in the Tenth Amendment, which reads, “The powers not delegated to the
United Sates by the Constitution, nor prohibited to it by the States, are
reserved to the States respectively, or the people.” State laws are also
supposed to regulate in two areas.
First, state law regulate issues of a local character or concern. A state may regulate, for example, its
water ownership and use because can be scare and is not generally provided to
other states. Second, state law regulate issues or things that remain within a
state’s burder. A state generally regulates, for example, the operation of a
small business whose products are only sold locally and not shipped out of the
state. (Dodo)
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