INTRODUCTION TO AMERICAN LAW (LAW5HAL)

1. INTRODUCTION TO AMERICAN LAW (LAW5HAL) LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law Professor Thomas Lundmark 10-12, 15-16 February 2010

2. Wednesday, 10 February 2010 morning session: historical background reading assignment: Farnsworth pp. 1-13, Lundmark pp. 5-15, 53-55, 74-77 afternoon session: legal training reading assignment: Farnsworth pp. 15-35 Thursday, 11 February 2010 morning session: legal profession reading assignment: Farnsworth pp. 23-35 afternoon session: judicial systems reading assignment: Farnsworth pp. 37-45, Lundmark pp. 74-81, 85-86, 90-91 Friday, 12 February 2010 morning session: legislation reading assignment: Farnsworth pp. 61-81, Lundmark pp. 93-101, 105-106 afternoon session: case law reading assignment: Farnsworth pp. 47-60 Monday, 15 February 2010 morning session: civil procedure reading assignment: Farnsworth pp. 99-110, 115-117 afternoon session: constitutional rights reading assignment: Farnsworth pp. 147-155, Lundmark pp. 109-120 Tuesday, 16 February 2010 morning session: fundamental rights reading assignment: Lundmark pp. 160-168 afternoon session: equal protection readingassignment: Lundmark pp. 169-175, 179, 184-200

3. today's topics history of statutory law-making history of the forms of action legal fictions American federalism characteristics of statutes statutory construction (also 'interpretation')

4. today's topics history of statutory law-making

5. history of statutory law-makingHunting Writ, William I (1066-1087) Willem king gret Gosfregð scirgerefan and ealle þa burhwaru binnan Lundene freondlice.  And ic beode eow þat ge on Lanfrances lande archbisceopes þe gebyrað into Hergan ne mman ne heort ne hindan ne hran, ne ge nates hwon ðærinne æig ðing huntian butan ðam he rylf bebyt oððe leofe togyfð. Translation: King William extends friendly greeting to Geoffrey the sheriff and all the citizens of London.  And I order you that you not take stags or hinds or other deer from the land of Archbishop Lanfranc at the manor of Harrow, and that you not hunt anything there without the archbishop's order or licence.

6. history of statutory law-making parliament concentrated on financial matters, including the organization and defense of the state legislation was problem-oriented judges were seen as discovering, declaring, and applying the law, not making it

7. history of statutory law-making In the seventeenth-century struggle between Parliament and the Crown, the common lawyers and judges threw their weight onto the side of Parliament and this alliance “made a clear issue between tradition, common law and the medieval view [that the king was under Godand the law] on one hand and, on the other, the newer idea of statecraft, absolutism and a supreme royal equity” (Plucknett, p. 283).

8. history of statutory law-makingWilliam Blackstone (1723 - 1780) lawyer, doctorate in civil law, professor of common law, then judge Book I "Rights of Persons," including "absolute rights of individuals" Book II "Rights of Things" Book III covers "Private Wrongs" Book IV "Public Wrongs" essentially an encyclopedia and commentary on the common law, ie, case law

9. today's topics history of the forms of action

10. history of the forms of action the common law developed within the framework of form pleadings or 'actions' By the end of Henry II's reign there were 75 (at other times 40) stereotyped forms of writ, each with its own title indicating its function the clerks of the royal Chancery would issue them as a matter of course to anyone who could pay for them (cf. court fees) available to all Englishmen, whether of Norman, Saxon, or Scandinavian stock, and wherever they happened to live activities not covered by an action were outside the purview of the (common) law

11. history of the forms of action There were three groups of actions: real: recovery of the thing personal: recovery of damages mixed: recovery of both the thing and damages

12. history of statutory law-makingforms of action example: action in debt had two elements: defendant owes a fixed sum of money (such as an unpaid loan, rent, or purchase price, not compensation for ordinary breach of contract) defendant received a quid pro quo or, later, "consideration" later replaced by assumpsit

13. history of statutory law-makingforms of action Notice how the 'formal' forms of action protected 'substantive' rights For example, debt stated positively: One who (in a commercial context) promises to pay a fixed sum of money shall pay that sum.

14. history of statutory law-makingforms of action The forms of actions imposed limits on the jurisdiction of the common law courts but, because they were stated so abstractly, the courts had considerable room for interpretation Cf. abstract codifications

15. history of statutory law-makingforms of action the common law forms of action have, for the most part, been replaced by modern pleading that is intended only to put the defendant on notice of the basic substance of the claim (see lecture on civil procedure) a huge number of statutes have been enacted in their place the statutes extend the law far beyond the original restraints of the common law writs

16. Early administration of justice in England • Courts of the shire or hundred • Local courts • For the free men of the district • Criminal and civil jurisdiction • Feudal courts • For tenants of a lord • Civil disputes only • King’s courts, both central and itinerant • Court of last resort • Court for tenants in chief • Cases in which the king has a special interest, e.g., serious criminal cases, which were a source of funds • Ecclesiastical courts or “courts Christian”, important for laity and clergy

17. History of the writ system: king extends his influence • Writ: written command from the Sovereign to perform an act or, if not, to defend one’s position before the king’s judges • issued for a fee by the Chancery and became an important source of revenue • This was the only way to commence an action • Writs reduced the jurisdiction of the other courts: • Criminal cases would be removed from the local courts to the king’s courts, meaning king received lands confiscated as penalty • church's judicial powers limited to ecclesiastical cases only in 1285, but family law and law of succession remained with church • Writs helped consolidate the king’s power

18. History of the writ system: reaction of the barons • 1215 Magna Carta: the Writ of Praecipe shall not be issued so as to deprive a free man of his court, • i.e., so as to deprive the lord of the manor of cases which would ordinarily come to his court • and generate lands and revenue for the lord • Provisions of Oxford 1258 • published in Latin, French, and Middle English, the first government document to be published in English • established a council of 24, • half selected by the Crown, • half by the barons • prohibited further expansion of the writ system • Statutes of Westminster 1285: Chancery may not vary the writs to fit new cases

19. History of the writ system: courts react to the Statutes of Westminster • Roughly 40-75 common law writs (number varied) • Courts used of ‘legal fictions’ to expand the their jurisdiction • Breach of the king’s peace (pax Regis) originally was interpreted narrowly • It was expanded to mean any use of criminal force • Compare applying statutes by analogy, which isn’t done nowadays in the common law, but is quite common in Germany, for example

20. Legal fiction extending the jurisdiction of the Exchequer • Exchequer had jurisdiction for taxes and obligations to the Crown • The Court of King's Bench had a heavy caseload • litigants would plead that they owed money to the Crown (which was a fiction), but could not pay the debt because the defendant had not paid the debt he owed

21. Legal fiction avoiding trial by combat • Claimants contesting title to real property writ of right intended for claimants contesting title to property • problem: the defendant could insist on wager of battle • (Painting is from Germany)

22. Legal fiction avoiding trial by combat • solution: claimants employed the assize of novel disseisin procedure, which called for trial by jury • But they had to allege that they had leased land to John Doe who had been ousted by Richard Roe who claimed a contrary lease by the defendant • Later: action of (or ‘in’) ejectment, which still survives outside England

23. Legal fictions: Jeremy Bentham (1748 - 1832) • viewed legal fictions are "a syphilis which runs into every vein and carries into every part of the system of principles of rottenness“ • coined the word "codification“ • Very influential in US

24. The writ system three groups of actions, according to remedy: • real: recovery of the thing • personal: recovery of damages • mixed: recovery of both the thing and damages

25. “Real” actions, i.e., involving title to real property • Originally the jurisdiction for the king’s courts concerned disputes involving land since all of society was organized under the land tenure system of the feudal law • upon a freeholder’s (landowner’s) death, title passed to his heirs • This refers to intestate succession, i.e., without a will • Until 1660, lands were not freely alienable by will • Testamentary law (concerning succession to personal property) was within the jurisdiction of the ecclesiastical courts until 1857 • Failure to have an heir caused the land to escheat to the sovereign

26. the ‘personal’ actions (starting in the 13th C): • replevin • detinue • trover • debt • account • covenant • trespass • case • assumpsit

27. replevin • wrongful distraint (taking) of chattels (movables) • distrainee posts security; distrainor must surrender the goods, usually cattle, or the sheriff will raise the posse comitatus and retake them • still in use • He who wrongfully takes the property of another shall return it to him.

28. replevin codified in California • California Code of Civil Procedure § 667: In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.

29. detinue • unjust detention (holding) of chattels (movables) • defendant to surrender the goods or pay damages • replaced by trover • He who unjustly holds the property of another shall return it to him or compensate him for his loss.

30. trover • Originally, the claim was good only when the plaintiff had lost his goods and the defendant had found them, but later the action required no more than a claim that the defendant refused to turn over personal property that belonged to the plaintiff. • often fictitious, as when the defendant purchased from the original wrongdoer • no longer used • One who comes into the possession of stolen or lost property must pay the rightful owner for it.

31. trover codified in California • California Civil Code § 2080: … Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property, or saves any domestic animal from harm, neglect, drowning, or starvation, shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property. … • See also California Penal Code § 485: One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

32. debt • defendant owes a fixed sum of money, such as an unpaid loan, rent, or purchase price (not compensation for ordinary breach of contract) • defendant received a quid pro quo or, later, "consideration" • replaced by assumpsit • One who (in a commercial context) promises to pay a fixed sum of money shall pay that sum.

33. debt codified in California • California Civil Code § 1550: It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. • California Civil Code § 3300: For the breach of an obligation arising from contract, the measure of damages … is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.

34. account • defendant has collected money on behalf of the plaintiff and has not given a proper account • auditor is appointed to supervise the account • gradually annexed by the Court of Chancery • One who holds money on another’s behalf must render proper accounts.

35. account in California • Called “[cause of] action for accounting” • not codified, but recognized as an equitable cause of action • To state a cause of action for accounting, a plaintiff must allege (1) a fiduciary relationship or other circumstances appropriate to the remedy; and (2) a balance due that can only be established by an accounting. (Witkin, California Procedure, Pleading, § 820)

36. covenant • defendant has not performed an obligation contained in a signed and sealed document • originally covering leases of land • obligation must not be a debt, even though attested under seal • still used for promises under seal • Promises under seal must be performed.

37. covenant in California • California Civil Code § 1629: All distinctions between sealed and unsealed instruments are abolished. • (For rules governing contracts under seal in American jurisdictions that have not abolished the distinction, see Rest.2d, Contracts §92 et seq.)

38. trespass • defendant used unlawful force and injured the plaintiff’s land, body, or chattels • trespass vi et armis et contra pacem Domini Regis ("with force and arms and against the peace of the Lord King") for injuries to the plaintiff or his property, • trespass de bonis asportatis ("for goods carried away"), and • trespass quare clausum fregit ("whereby he broke the close") for an unlawful entry on the premises. • plaintiff is in possession and seeks compensation, not return of the goods • Maitland once called trespass "that fertile mother of actions." It is still in use. • One who unlawfully uses force and thereby injures the person or property of another shall pay that person compensation

39. (trespass on the) case • 15th century • defendant negligently or by deceit (intentionally) injured the person or property of another • includes slander and libel, but few precedents during the Middle Ages, since bad words are dealt with by the local courts, and defamation by the ecclesiastical courts • not used as such, but gave birth to our entire modern system of negligence law • One who intentionally or negligently injures the person or property of another shall pay that person compensation.

40. (trespass on the) case codified • Cal. Civil Code § 43: Besides the personal rights mentioned or recognized in the Political Code [now Government Code], every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. • Cal. Civil Code § 1708(1872 version): Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights. • Cal. Civil Code § 1714(1872 version): Everyone is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, wilfully or by want of ordinary care, brought the injury upon himself.

41. assumpsit • 16th century became dominant for contract • defendant undertook to do something for the plaintiff but did so badly or not at all (misfeasance and nonfeasance), causing injury to the plaintiff’s person or goods (The defendant might be a surgeon who has unskilfully treated the plaintiff or his animals so that he or they have suffered some physical harm.) • general form by which contracts not under seal can be enforced by way of action for damages • no longer used as such, but modern law of contracts developed out of general (implied by law) and special (express promise) assumpsit • One who breaches a contract shall pay the non-breaching party damages.

42. Assumpsit codified in California • California Civil Code § 1549: A contract is an agreement to do or not to do a certain thing. • California Civil Code § 3281: Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages. • California Civil Code § 3300: For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.

43. 19th century reforms in England • For personal forms of action, the Uniformity of Process Act 1832 imposed a single uniform process. • The older forms of writ were abolished and a new form of writ was to be used • although the writ had to state the form of action that was being used • most real and mixed actions were abolished, by the Real Property Limitation Act 1833 • Common Law Procedure Act 1852 dropped the requirement that any particular form of action should be mentioned within a writ • Judicature Act 1873 repealed requirement of employing the forms of action • Judicature Act 1875 amalgamated all the old courts (Chancery, King’s Bench, Common Bench, Exchequer, Court of Admiralty, Court of Probate, Court of Divorce)

44. In the United States: Abraham Lincoln in Illinois (5,000 cases) At law (incl. partners) At equity (incl. partners) mortgage foreclose (more than 200 cases) petition for injunction to partition real estate (142 cases) petitions to sell real estate to pay debts (75 cases) divorce cases (145) dower petitions (44) • assumpsit (1,240 cases) • debt (667 cases) • criminal (27 cases) • appeals before the Illinois Supreme Court (400) • cases in the federal district and circuit courts (at least 340)

45. In the United States • Pleadings in colonial North America were less formal • both trespass and case were used for the recovery of real property and for specific items of personal property • trover and assumpsit were frequently used interchangeably. • US Rules of Civil Procedure (1938), Rule 2: There is one form of action -- the civil action. • Applies only to the federal courts • Although many states have adopted it

46. In the United States • Cal. Code Civ. Pro. §425.10: (a) A complaint or cross-complaint shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language and (2) a demand for judgment …. • However, In the common law action of general assumpsit, it was customary to plead an indebtedness by using the “common counts.” “common counts” survive: • Money Had and Received • Work and Labor (Services) • Goods Sold and Delivered • Money Lent or Money Paid • Account Stated • Quantum Meruit (Services) • Quantum Valebant (Goods Sold)

48. Frederic William Maitland (1850–1906) • “The forms of action we have buried, but they still rule us from their graves.”

49. today's topics history of statutory law-making American federalism characteristics of statutes statutory construction (also 'interpretation')