Problem: Classifications of Law

We can divide the law into some categories that will help us better understand the many legal domains and processes. Substantive and Procedural Law Substantive laws create, define, and regulate legal rights and obligations. Thus, for example, the federal Civil Rights Act of 1964 forbids discrimination in employment and other matters (see Chapter 13). Procedural law embraces the systems and methods available to enforce the rights specified in the substantive law. So procedural law includes the judicial system and the rules by which it operates. Questions of where to hear a case, what evidence to admit, and which decisions can be appealed fall within the procedural domain.

Law and Equity

Following the Norman conquest of England in 1066, a system of king's courts was established in which the king's representatives settled disputes. Those representatives were empowered to provide remedies of land, money, or personal property. The king's courts became known as courts of law, and the remedies were labeled remedies of law. Some litigants, however, sought compensation other than the three provided. They took their pleas to the king. Typically the chancellor, an aide to the king, would hear these petitions and, guided by the standard of fairness, could grant a remedy (such as an injunction or specific performance- see the glossary of legal terms in the back of the book) specifically appropriate to the case. The chancellors' decisions accumulated over time such that a new body of remedies-and with it a new court system, known as courts of equity-evolved. Both court systems were adopted in the United States following the American Revolution, but today actions at law and equity are typically heard in the same court.

Public Law and Private Law

Public law deals with the relationship between government and the citizens. Constitutional, criminal, and administrative law (relating to such bodies as the Federal Trade Commission) fall in the public law category. Private law regulates the legal relationship among individuals. Contracts, agency, and commercial paper are traditional business law topics in the private category.

Civil Law and Criminal Law

The legislature or other lawmaking body normally specifies that new legislation is either civil or criminal or both. Broadly, all legislation not specifically labeled criminal law falls in the civil law category. Civil law addresses the legal rights and duties arising among individuals, organizations such as corporations, and governments. Thus, for example, a person might sue a company raising a civil law claim of breach of contract. Criminal law, on the other hand, involves wrongs against the general welfare as formulated in specific criminal statutes. Murder and theft are, of course, criminal wrongs because society has forbidden those acts in specific legislative enactments. (For a brief discussion of business and white-collar crime and the federal sentencing guidelines, see Chapter 2.)

Crimes Crimes are of three kinds. In general, felonies are more serious crimes, such as murder, rape, and robbery. They are typically punishable by death or by imprisonment in a federal or state penitentiary for more than one year. In general, misdemeanors are less serious crimes, such as petty theft, disorderly conduct, and traffic offenses. They are typically punishable by fine or by imprisonment for no more than one year. Treason is the special situation in which one levies war against the United States or gives aid and comfort to its enemies.

Elements of a Crime In a broad sense, crimes consist of two elements: (1) a wrongful act or omission (actus reus) and (2) evil intent (mens rea). Thus, an individual who pockets a pen and leaves the store without paying for it may be charged with petty theft. The accused may defend, however, by arguing that he or she merely absentmindedly and unintentionally slipped the pen in a pocket after picking it off the shelf to consider its merits. Intent is a state of mind, so the jury or judge must reach a determination from the objective facts as to what the accused's state of mind must have been.

Criminal Procedure In general, criminal procedure following an arrest, and an initial appearance before a magistrate, (and in some cases a preliminary hearing) is structured as follows: For misdemeanor cases, prosecutors typically file what is called an information, a formal expression of the charges. The information may be reviewed by a magistrate before issuance. For felony cases, the process begins with the prosecuting officials either filing an information or seeking an indictment by bringing their charges before a grand jury of citizens to determine whether the charges have sufficient merit to justify a trial. After an indictment or information, the individual is brought before the court for arraignment, where the charges are read and a plea is entered. If the individual pleads not guilty, he or she will go to trial, where guilt must be established beyond a reasonable doubt. In a criminal trial, the burden of proof is on the state. The defendant is, of course, presumed innocent and is entitled to a jury trial, but she or he may choose to have the case decided by the judge alone. If found guilty, the defendant can, among other possibilities, seek a new trial or appeal errors in the prosecution. If found innocent, the defendant may, if necessary, invoke the doctrine of double jeopardy under which a person cannot be prosecuted twice in the same tribunal for the same criminal offense.

Questions-Part One

1. Jonathan Rauch argued that America is making a mistake in allowing what he calls Hidden Law to be replaced by what he calls Bureaucratic Legalism. Hidden Law refers to unwritten social codes, whereas Bureaucratic Legalism refers to state-provided due process for every problem. Thus, universities formerly expected insults and epithets among students to be resolved via informal modes such as apologies, while today many universities have written codes forbidding offensive or discriminatory verbal conduct. Similarly, four kindergarten students in New Jersey were suspended from school for three days because they were observed "shooting" each other with their fingers serving as guns.

a. Should we leave campus insults and school-yard finger "shootings" to the Hidden Law? Explain.

b. Can you think of other examples where we have gradually replaced Hidden Law with Bureaucratic Legalism? c. Rauch argued that the breakdown of one Hidden Law, the rule that a man must marry a woman whom he has impregnated, may be "the most far-reaching social change of our era." Do you agree? Explain. See George Will, "Penalizing These Kids Is Zero Tolerance at a Ridiculous Extreme," The Des Moines Register, December 27, 2000, p. 11A.

2. Should we remove criminal penalties from all of the so-called victimless crimes including vagrancy, pornography, and gambling? Should we regulate those practices in any way? Explain.

3. According to the National Conference of State Legislatures, as of 2013, at least 29 states had either enacted or introduced legislation prohibiting the practice of "sexting" (cell phone transmission of nude photos of themselves and other risqué material) by minors.8

a. What objections would you raise to a criminal law forbidding sexting by minors?

b. Is this an area where the government should simply refrain from intervention? Explain.

4. A Rhode Island man pleaded guilty to child molestation. As an alternative to imprisonment and as a condition of his probation, the judge ordered him to purchase a newspaper ad displaying his picture, identifying himself as a sex offender, and encouraging others to seek assistance. One Florida judge has sentenced hundreds of shoplifters to carrying in public a sign that reads: "I stole from this store." Constitutional law expert Jonathan Turley says "creative sentencing" is growing, a trend he disapproves of and regards as a strategy for entertaining the public more than deterring crime.9

a. What objections would a defendant's lawyer raise to these public humiliation punishments?

b. Would you impose a "humiliation sentence" if you were the judge? Explain.