2010-LAW5HAL-lec4 by wanghonghx

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									INTRODUCTION TO AMERICAN LAW
         (LAW5HAL)

LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law
                 Professor Thomas Lundmark
                  10-12, 15-16 February 2010




            Prof. Dr. Thomas Lundmark
  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
  reading assignment: Lundmark pp. 169-175, 179, 184-200



Prof. Dr. Thomas Lundmark
                            state courts

• have no jurisdiction over
  cases of
   - admiralty
   - bankruptcy
   - patent and copyright
   - federal securities and
      antitrust
• but have jurisdiction
  over (practically)
  everything else (residual
  jurisdiction)

Prof. Dr. Thomas Lundmark
                            state (court) judges

• includes quasi-
  judicial officers
  (commissioners,
  magistrates, and
  referees)
• 29,000 in number




Prof. Dr. Thomas Lundmark
                            federal court jurisdiction
                                            • express grants of
                                              judicial power
                                               - subject matter
                                                  jurisdiction
                                               - 'cases or
                                                  controversies'
                                            • implied grants of
                                              judicial power
                                               - judicial review of
                                                  constitutionality
                                               - 'political questions'


Prof. Dr. Thomas Lundmark
                            text of Art. III, US Const.
• Section 1. The judicial Power of the United States, shall be vested
  in one supreme Court, and in such inferior Courts as the
  Congress may from time to time ordain and establish. The
  Judges … shall hold their Offices during good Behaviour ….
• Section 2, cl. 1. The judicial Power shall extend to all Cases, in
  Law and Equity, arising under this Constitution, the Laws of the
  United States, and Treaties made … under their Authority; … to
  Controversies … between Citizens of different States ….
• Section 2, cl. 3. The Trial of all Crimes, except in Cases of
  Impeachment, shall be by Jury ….




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                       subject matter jurisdiction

 • federal party and question (28 U.S.C. §§ 1331, 1333, 1345,
   and 1251)
 • exclusive jurisdiction:
    - admiralty
    - bankruptcy
    - patent and copyright
    - federal securities and antitrust
 • diversity (28 U.S.C. §§ 1330 and 1332: amount in controversy
   must generally exceed $75,000)




Prof. Dr. Thomas Lundmark
                       subject matter jurisdiction
   2006 district courts

   civil filings:                  259,541

   fed Q or party:                 179,171

   diversity:                      80,370 (23% of all filings)

   criminal filings:               88,216

   TOTAL FILINGS:                  347,757


Prof. Dr. Thomas Lundmark
                            United States Code
Title 1, General Provisions                       Title 27, Intoxicating Liquors
Title 2, The Congress                             Title 28, Judiciary and Judicial Procedure
Title 3, The President                            Title 29, Labor
Title 4, Flag and Seal, Seat of Government, and   Title 30, Mineral Lands and Mining
     the States                                   Title 31, Money and Finance
Title 5, Government Organization and Employees    Title 32, National Guard
Title 6, Domestic Security                        Title 33, Navigation and Navigable Waters
Title 7, Agriculture                              Title 34, Navy (Repealed)
Title 8, Aliens and Nationality                   Title 35, Patents
Title 9, Arbitration                              Title 36, Patriotic Societies and Observances
Title 10, Armed Forces                            Title 37, Pay and Allowances of the Uniformed
Title 11, Bankruptcy                                   Services
Title 12, Banks and Banking                       Title 38, Veterans' Benefits
Title 13, Census                                  Title 39, Postal Service
Title 14, Coast Guard                             Title 40, Public Buildings, Property, and Works
Title 15, Commerce and Trade                      Title 41, Public Contracts
Title 16, Conservation                            Title 42, The Public Health and Welfare
Title 17, Copyrights                              Title 43, Public Lands
Title 18, Crimes and Criminal Procedure           Title 44, Public Printing and Documents
Title 19, Customs Duties                          Title 45, Railroads
Title 20, Education                               Title 46, Shipping
Title 21, Food and Drugs                          Title 47, Telegraphs, Telephones, and
Title 22, Foreign Relations and Intercourse            Radiotelegraphs
Title 23, Highways                                Title 48, Territories and Insular Possessions
Title 24, Hospitals and Asylums                   Title 49, Transportation
Title 25, Indians                                 Title 50, War and National Defense
Title 26, Internal Revenue Code

Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
    California Law consists of 29 codes, the State
        Constitution, and uncodified statutes

•    Business and Professions Code   •   Insurance Code
•    Civil Code                      •   Labor Code
•    Code of Civil Procedure         •   Military and Veterans Code
•    Commercial Code                 •   Penal Code
•    Corporations Code               •   Probate Code
•    Education Code                  •   Public Contract Code
•    Elections Code                  •   Public Resources Code
•    Evidence Code                   •   Public Utilities Code
•    Family Code                     •   Revenue and Taxation Code
•    Financial Code                  •   Streets and Highways Code
•    Fish and Game Code              •   Unemployment Insurance Code
•    Food and Agricultural Code      •   Vehicle Code
•    Government Code                 •   Water Code
•    Harbors and Navigation Code     •   Welfare and Institutions Code
•    Health and Safety Code




Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark
                            “reception statutes”

• California Civil Code Section 22.2:        • New York Constitution of 1777:
• "The common law of England, so far as      • “[S]uch parts of the common law of
it is not repugnant to or inconsistent       England, and of the statute law of
with the Constitution of the United          England and Great Britain, and of the
States, or the Constitution or laws of       acts of the legislature of the colony of
this State, is the rule of decision in all   New York, as together did form the law
the courts of this State."                   of the said colony on the 19th day of
                                             April, in the year of our Lord one
                                             thousand seven hundred and seventy-
                                             five, shall be and continue the law of
                                             this State, subject to such alterations
                                             and provisions as the legislature of this
                                             State shall, from time to time, make
                                             concerning the same.




Prof. Dr. Thomas Lundmark   22.06.2011
                text of Art. III, sec. 2, US Const.
     The judicial Power shall extend to all Cases, in Law and Equity,
     arising under this Constitution, the Laws of the United States,
     and Treaties made, or which shall be made, under their
     Authority;--to all Cases affecting Ambassadors, other public
     Ministers and Consuls;--to all Cases of admiralty and maritime
     Jurisdiction;--to Controversies to which the United States shall
     be a Party;--to Controversies between two or more States;--
     between a State and Citizens of another State;--between Citizens
     of different States;--between Citizens of the same State claiming
     Lands under Grants of different States, and between a State, or
     the Citizens thereof, and foreign States, Citizens or Subjects.




Prof. Dr. Thomas Lundmark
                             federal common law?

• limited subject-matter jurisdiction
• judicial law-making considered 'policy-making'
  [see Gregory v. Ashcroft, fn. 137, p. 3]
• 'All legislative Powers herein granted shall be
  vested in a Congress of the United States ….'
  (Art. I, § 1)
• So?
• no "general federal common law" Erie Railroad v.
  Tompkins (1938)

 Prof. Dr. Thomas Lundmark
                            text of Art. III, sec. 2
     The judicial Power shall extend to all Cases, in Law
     and Equity, arising under this Constitution, the Laws
     of the United States, and Treaties made, or which
     shall be made, under their Authority;--to all Cases
     affecting Ambassadors, other public Ministers and
     Consuls;--to all Cases of admiralty and maritime
     Jurisdiction;--to Controversies to which the United
     States shall be a Party;--to Controversies between two
     or more States;--between a State and Citizens of
     another State;--between Citizens of different States;--
     between Citizens of the same State claiming Lands
     under Grants of different States, and between a State,
     or the Citizens thereof, and foreign States, Citizens or
     Subjects.

Prof. Dr. Thomas Lundmark
                            'cases or controversies'

• advisory opinions: Congress and the President should
  not enact legislation if they doubt its constitutionality
• ripeness: threatened harm must be real and
  immediate, not hypothetical
• mootness: no longer controversial, unless 'capable of
  repetition, yet evading review'
• standing: a personal stake in the outcome as to assure
  concrete adverseness, unless a taxpayer action
  challenging a spending program



Prof. Dr. Thomas Lundmark
                          Marbury v. Madison:
                      a real 'case or controversy'?




Prof. Dr. Thomas Lundmark
                        Marbury v. Madison: facts

                                     • President John Adams
                                       (not John Quincy
                                       Adams) appointed John
                                       Marshall (at left) Chief
                                       Justice of the U.S.S.Ct.
                                     • The appointment was
                                       confirmed by the Senate,
                                       the commission was
                                       signed and delivered,
                                       and Marshall took office


Prof. Dr. Thomas Lundmark
                        Marbury v. Madison: facts
                                    • President John Adams appointed
                                      William Marbury Justice of the
                                      Peace of the District of Columbia
                                    • The appointment was confirmed
                                      by the Senate. The commission
                                      was signed, but never delivered
                                    • President Jefferson took office
                                    • Marbury filed a legal action with
                                      the Supreme Court,
                                    • which granted a 'rule' requiring
                                      the secretary of state to show
                                      cause why a mandamus should
                                      not issue pursuant to Judiciary
                                      Act of 1789


Prof. Dr. Thomas Lundmark
                            Marbury v. Madison: law
•   Art. III, § 2, cl. 1. The judicial Power shall extend to all Cases, in Law
    and Equity, arising under this Constitution, the Laws of the United
    States, and Treaties made … under their Authority; … to Controversies
    … between Citizens of different States ….
•   Art. III, § 2, cl. 2. In all Cases affecting Ambassadors, other public
    Ministers and Consuls, and those in which a State shall be Party, the
    supreme Court shall have original Jurisdiction. In all the other Cases
    before mentioned, the supreme Court shall have appellate Jurisdiction,
    both as to Law and Fact, with such Exceptions, and under such
    Regulations as the Congress shall make.
•   Judiciary Act of 1789, § 13: The Supreme Court may 'issue writs of
    mandamus, in cases warranted by the principles and usages of law, to
    any courts appointed, or persons holding office, under the authority of
    the United States.'




Prof. Dr. Thomas Lundmark
   Marbury
   v.
   Madison:                 Marbury
                            v.
   holding                  Madison:
                            holding




Prof. Dr. Thomas Lundmark
                     Marbury v. Madison: holding
• 1st. That by signing the commission of Mr.
  Marbury, the president of the United States
  appointed him a justice of peace for the county of
  Washington in the district of Columbia … and
  that the appointment conferred on him a legal
  right to the office ….
• 2d. That, having this legal title to the office, he
  has a consequent right to the commission ….
• The authority … given to the supreme court … to
  issue writs of mandamus to public officers,
  appears not to be warranted by the constitution
  ….
• [A] legislative act contrary to the constitution is
  not law ….
• The rule must be discharged.
Prof. Dr. Thomas Lundmark
                 Martin v. Hunter's Lessee: facts
                                 • In 1777 the Commonwealth of
                                   Virginia passed a law providing
                                   for forfeiture of lands of British
                                   subjects upon their deaths.
                                 • Thomas, Lord Fairfax of
                                   Cameron, died in 1781, leaving
                                   the land to Martin's uncle, who
                                   left it to Martin, who lived on
                                   the land.
                                 • The United States entered into a
                                   treaty with Britain in 1783
                                   preventing confiscation.
                                 • Virginia granted the land to
                                   Hunter in 1789.
                                 • In a suit to eject Martin from
                                   the land, the Virginia Court of
                                   Appeals granted judgment
                                   against Martin, ruling that the
                                   treaty could not be applied
Prof. Dr. Thomas Lundmark          retroactively.
Prof. Dr. Thomas Lundmark
                 supremacy clause, Art. IV, § 2

  This Constitution, and the Laws of the United States
  which shall be made in Pursuance thereof; and all
  Treaties made, or which shall be made, under the
  Authority of the United States, shall be the supreme
  Law of the Land; and the Judges in every State shall
  be bound thereby, and Thing in the Constitution or
  Laws of any State to the Contrary notwithstanding.




Prof. Dr. Thomas Lundmark
                   Martin v. Hunter's Lessee: law
       Judiciary Act § 25 (now 28 U.S.C. § 1257(a)): Final
       judgments or decrees rendered by the highest court of
       a State in which a decision could be had, may be
       reviewed by the Supreme Court by writ of certiorari
       where the validity of a treaty or statute of the United
       States is drawn in question or where the validity of a
       statute of any State is drawn in question on the
       ground of its being repugnant to the Constitution,
       treaties, or laws of the United States….




Prof. Dr. Thomas Lundmark
             Martin v. Hunter's Lessee: holding
• On the whole, the court are of opinion, that the
  appellate power of the United States does extend to
  cases pending in the state courts; and that the 25th
  section of the judiciary act, which authorizes the
  exercise of this jurisdiction in the specified cases, by a
  writ of error, is supported by the letter and spirit of
  the constitution.
• We find no clause in that instrument which limits this
  power; and we dare not interpose a limitation where
  the people have not been disposed to create one.




Prof. Dr. Thomas Lundmark
                            questions on 'judicial review'

• Do inferior federal courts have the authority to declare
  state legislation unconstitutional under the federal
  constitution?
• Do inferior federal courts have the authority to declare
  federal legislation unconstitutional under the federal
  constitution?
• Do state courts have the authority to declare state
  legislation unconstitutional under the federal
  constitution?




Prof. Dr. Thomas Lundmark
                       political questions: criteria
• textually demonstrable
  commitment of the issue
  to a political branch
• lack of judicially
  manageable standards
• need for finality
• effectiveness of judicial
  remedies

       (Baker v. Carr, 1962)


Prof. Dr. Thomas Lundmark
Prof. Dr. Thomas Lundmark

								
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