Post on 17-Aug-2015
Civil and Administrative Law
Designed to provide remedies for individuals harmed by others
Designed to manage social conflictDesigned to restore social harmony (Myren,
1988)Provides a means by which disputes
between private parties can be resolved without the use of force
Has its own substantive and procedural law as well as precedent
Civil and Administrative Law
Divided into four main categories:1. Torts2. Property law3. Contract law4. Family law
Juvenile law is also a category of civil law (covered in Chapter 8).
Civil and Administrative Law
Complaint is filed by plaintiff.Redress given in form of:
Monetary damages Injunctions Specific performance
Defendant may appeal verdict or judgment to higher court.
Burden of proof in civil trial: Proof by a preponderance of the evidence
Evidence indicates that it is more likely than not that the defendant committed the wrongful act.
Also: clear and convincing evidence Punitive damages Involuntary commitment
Civil and Administrative Law
Many rights provided in a criminal trial are not present in a civil trial: No exclusionary rule No right to remain silent Diminished right to cross-examine hostile witnesses No legal obligation for the state to provide an
attorney for indigent defendants
Civil and Administrative Law
The body of law associated with harm caused to the plaintiff by the action/inaction of defendant(s) (the tortfeasor)
Exist to determine what harm has been done and how best to remedy such harm so that the plaintiff is in a position similar to the one prior to the harm
Damages are awarded to the harmed; usually monetary. Constitutes majority of cases brought before American courts Individual can be held liable for harm done in both civil and
criminal courts. No double jeopardy applicable
Cannot bring suit against same person for same civil case Res judicata
“Thing decided” Not applicable in certain circumstances
Torts
Civil and Administrative Law
Intentional acts Defendant deliberately caused harm.
Negligent acts The defendant had a duty to act in a certain way;
the defendant breached that duty; harm resulted. Ordinary care standard
Lubitz v. Wells (1955)
Strict liability Plaintiff need not prove that the defendant acted
intentionally or negligently.
Categories of Torts
Civil and Administrative Law
Challenges causal and duty issuesAffirmative defenses
Contributory negligence If an injured party is partially responsible for her
injuries, she is barred from recovering from a tortfeasor.
Comparative negligence Apportions responsibility
Consent and immunity (sovereign immunity) Consent to being harmed by another Judges cannot be sued for releasing an individual on
probation who then harms someone.
Defenses to Torts
Civil and Administrative Law
Efforts to have legislation passed that limits frivolous lawsuits and exorbitant punitive damages awarded by jurors
Driven by headline cases“Sue-happy” tradition appears to have
passed.
Tort Reform
Civil and Administrative Law
Product of English common lawProtection of ownership rightsProperty: the right of possession or
ownershipIncludes:
Personal Real Intellectual
Pierson v. Post, 1804City of Oakland v. Oakland Raiders, 1980
Property Law
Civil and Administrative Law
Interests are rights.Freehold estate: a person owns a piece of
property Fee simple estate
Possession ends at death. Fee simple absolute state
Possession does not revert to original owner at death. Tenancy in common
Non-freehold estate: the right to use property
Interests in Real Property
Civil and Administrative Law
Easement Limited right to use the property of another for a specific
purposeAdverse possession
Generally affects only property abandoned by original owner
Very easy to prevent a claimNuisance doctrine
Property owner may not use property in such a way that it has an unreasonable, adverse effect on other property owners.
Must keep property reasonably safe
Interests in Real Property (cont.)
Civil and Administrative Law
Personal property Any tangible item not connected to the land
Movables Can be transferred permanently or temporarily to
another person by ownerBailment
When a person transfers possession of one item to another person for a particular purpose with the understanding that it will be returned
A transfer of possession, not ownership
Interests in Personal Property
Civil and Administrative Law
Governs the conduct of businessContracts
Legally enforceable promisesBreach of contract
When terms of contract are not metUniform Commercial Code
Standardizes trade and contract practices among merchants and businesses
Codifies variety of principles already established by common law
Contract Law
Civil and Administrative Law
Elements of a valid contract:1. At least two parties
Two-party requirement2. Must be capable (have legal capacity) of signing a
contract Legal capacity requirement
3. Must agree to terms of the contract (assent) in good faith
Assent requirement4. Must have both a promise and consideration
Legality requirement5. Can be either written or verbal
Sullivan v. O’Conner (1973)National Labor Relations Board v. Bildisco & Bildisco
(1984)
Contracts (cont.)
Civil and Administrative Law
Designed to protect integrity of marriageConciliatory rather than accusatory
No necessary judgment of right or wrongFocuses largely on entering into and
dissolution of marriagesRequirements for marriage
License Possible blood test and waiting period
Presence of someone legally permitted to acknowledge marriage
Witnessed marriage vows
Family Law
Civil and Administrative Law
Marriage is a legal contract.Legal capacity (age, sound mind)o No mental deficiencies
• Insanity • Being under the influence
No closely related people Cannot be married to someone else
• Bigamy
Who May Marry Whom?
Civil and Administrative Law
Reynolds v. United States (1878)Skinner v. Oklahoma (1942)Loving v. Virginia (1967)Zablocki v. Redhail (1978)Turner v. Sufley (1987)
Supreme Court and the Right to Marry
Civil and Administrative Law
Federal Defense of Marriage Act of 1996 (DOMA) Only opposite-sex couples can be married.
2008 California Supreme Court ruled same-sex marriage
constitutionally permissible Same year Proposition 8 passed in CA Lawsuit filed
Claims DOMA and Proposition 8 are unconstitutional based on Article IV of Constitution, full faith and credit clause
August 2009 Federal district judge dismissed case on jurisdictional
grounds.• Did not rule on merits of case
Supreme Court and the Right to Marry (cont.)
Civil and Administrative Law
February 2012 Federal appeals court struck down Proposition 8.
May 2012 Three-judge panel of U.S. Court of Appeals for First
Circuit unanimously declared DOMA unconstitutional. No immediate effect from ruling
Government will appeal.Next appeal is to U.S. Supreme Court
Precedent indicates a decision to make same-sex marriage constitutional. Court can split hairs, determining sexual orientation not to
be a protected category. Can also appeal to Skinner ruling
Marriage in terms of procreation
Supreme Court and the Right to Marry (cont.)
Civil and Administrative Law
Couples cohabitate and act in every way as though married For a period of time and maintaining certain criteria
Recognized as valid if states allow them 39 have abolished them.
States recognize marriage to be a legal contract. Carries rights and responsibilities
Those that recognize them require individuals to abide by contractual agreements in establishing relationship. Also may have to abide by dissolution requirements
Common-Law Marriage
Civil and Administrative Law
Requires legal grounds No-fault
No assumption of fault by either partner Fault
Adultery Cruelty Desertion Insanity Alcoholism
Annulment Legal declaration that not all requirements were met;
ergo, marriage never existed Lack of legal consent Impotence Concealing STD Concealing pregnancy from union with another person
Divorce and Annulment
Civil and Administrative Law
Dissolution requires determination of who gets what out of partnership.
Statutes vary by state, but two types dominate: Dual property All property
Child custody Based on custodial status of parents
Child support Based on custodial status, income of both parties, and
costs of childrearing Many states have complex formulas.
Spousal support Can be different from child support
Dividing Property, Child Custody, and Spousal Support
Civil and Administrative Law
Branch of public law involving governmental administrative agencies Agencies make, enforce, and adjudicate
administrative law. Investigates complaints, conducts on-site
inspections, and requires annual reportsCombine government rolesHave a huge impact on livesArticle 1, section 8 of U.S. Constitution
Grants Congress plenary power to regulate commerce
Prior to twentieth centuryDuring twentieth century
Administrative Law
Civil and Administrative Law
Origins and Growth of Administrative AgenciesExplosive growth in administrative/regulatory agencies since 1789
Interstate Commerce Commission (ICC) Created in 1887 Designed to respond to unfair railroad tariffs
Agencies rapidly grew under President F.D. Roosevelt in 1930s.Passing of Administrative Procedure Act (APA) of 1946170 federal agencies today
Administrative Law
Civil and Administrative Law
Securities and Exchange Commission (SEC) Has power to regulate activities related to stock
exchange and securities marketsRegulatory agencies
Create their own rules due to realization by Congress that only they (the agencies) have specific knowledge pertaining to subject matter
Investigate violations of agency rules and devise ways to enforce them
Settle most disputes informally by voluntary settlements Can be settled in administrative court hearings
Chevron deference
Administrative Law
Civil and Administrative Law
Increase in concern since 1960sOverseen by Environmental Protection
Agency (EPA)Is an ideal that is difficult to attainFirst Earth Day in 1970
Environmental laws existed before 1960s. Most effective passed after late 1960s
National Environmental Policy Act (NEPA) (1969) Clean Air Act (1970) Clean Water Act (1972)
Environmental Justice
Civil and Administrative Law
Local police and prosecutors not trained to enforce environmental laws, nor view them as priority
EPA Largest regulatory agency Divides enforcement tasks into three areas:
Civil enforcement Cleanup enforcement Criminal enforcement
Most regulations (both federal and state) allow for both civil and criminal enforcement. Agencies tend to pursue civil over criminal.
Environmental Justice (cont.)
Civil and Administrative Law
Burns and Lynch (2004) Support for environmental protection has waxed and
waned across presidential administrations since 1970. Nixon administration
Created EPA Largely positive influence on environment
Carter administration Provided mixed messages
Regan administration Pro-business/antiregulatory stance damaged EPA
George H. Bush administration Mixed record much like Carter
G.W. Bush administration Seen as worst on environmental issues
Obama administration Entered office with “greenest” credentials
Environmental Justice (cont.)
Civil and Administrative Law
Primarily offenses committed by business interests Dumping toxic waste in rivers, etc.
Many have far-reaching health and safety effects
Defendants typically tried under principles of strict liability Civil or criminal courts Rylands v. Fletcher (1868) United States v. Weitzenhoff (1994)
BP oil blowout on April 20, 2010 Considered to be most spectacular and costly manmade
environmental disaster in American history
Environmental Crime
Civil and Administrative Law
Administrative agencies lack criminal enforcement powers beyond assessing fines. Can refer for criminal prosecution
White-collar crimes absent from tally in Uniform Crime Reports (UCR)
Financial Crimes Report Provides separate accounting of white-collar crimes
each year
Administrative Law and Corporate Crime
Civil and Administrative Law
Few corporate crooks were recipients of truly meaningful sanctions in past.
Things are beginning to change: Following Congressional hearings and public
outcries Passing of Sarbanes-Oxley Act (SOA) of 2002
Requires company chiefs to personally vouch for their company’s financial disclosures• Allows for proaction rather than reaction to white collar crimes• Can no longer hide behind “plausible deniability”
White Collar Crimes Penalty Enhancement Act Created new securities offenses with significantly
enhanced penalties
Recent Responses to Corporate Crime