Freedom of Religion

Posted December 29th, 2012 by admin and filed in Uncategorized

Religious freedom is a liberty Americans hold dearly. The Constitution provides three specifications of religious liberty. One is noted in Article VI which declares, “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Presently, this provision doesn’t appear as necessary but at the time of its drafting, it was quite innovative.This was because in England and in the colonies, it was required that office holders swore a belief to a particular religion. The writers of the Constitution wanted to ensure the American government would not make this requirement of those serving in public office.

The First Amendment contain further religious liberties in two clauses known as the establishment clause and the free exercise clause. It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”The intention of the First Amendment is to limit the government’s infringement into private affairs such as religion.

The purpose of the establishment clause is to prevent the government from establishing a state religion or using the powers of the government to support a particular religion. The purpose of the free exercise clause is to prevent the government from intruding on individual religious choices. Interestingly, the Supreme Court dealt with few religion cases until the middle of the twentieth century.

However, the law is more complex and doesn’t always provide direct application to every case. Therefore, the intervention of the Supreme Court is necessary to clarify and define further the intentions of the Constitution.

 

 

Appellate Courts

Posted December 22nd, 2012 by admin and filed in Uncategorized

After a trial has been held, the losing party may assess whether or not he would like to have the case reviewed by an appellate court. However, one doesn’t have to lose in order for an appeal to be an option. Even a winning party who may have only been granted part of what it wanted can appeal the case to a higher court.

Nevertheless, this may not always be a viable possibility. The lawyer may advise against it on the grounds that his client doesn’t have a good enough basis for appealing. Or, the party might be unable or unwilling to invest any more money in further litigation.

Two layers of Appellate Courts

Federal courts and those of big states have two layers of appellate courts.

  • Intermediate Appellate Court: It is called the Courts of Appeals at the federal level but its name will vary from state to state. This court is required to hear every case brought before it. Smaller states do not have this layer.
  • U.S. Supreme Court or the State’s Supreme Court: This is the highest level of court. If a party does not like to ruling given in the intermediate appellate court, it can appeal to the supreme court. However, the supreme court can determine whether or not it hears the case.

The goal of the appellate court is to correct errors in the courts below that violate the justice of the judicial process. It attempts to do so effectively and efficiently in order to prevent a unnecessary delay in the whole judicial process.

The Role of a Jury

Posted December 15th, 2012 by admin and filed in Uncategorized

The Seventh Amendment of the U.S. Constitution and most state constitutions give the right to a jury trial in civil cases. A bench trial may be preferred by both parties meaning the case it decided by a judge without a jury. But in most cases, if either party desires a jury, it is granted.

Juries are somewhat controversial. There are those who favor their use as a foundational element of the democratic process. But for others, juries seem antiquated, composed of amateurs who have little grasp of the law itself.

Jury Selection

Potential jurors are selected from the rolls of registered voters, licensed drivers and other sources. The purpose is to choose jurors from a large representation of society. Many court systems use a “one day-one trial” system. This limits the juror to appear in the jury pool for one day and if selected, to serve on a jury for just one trial.

Many summoned for jury duty view it more as an inconvenience rather than a civic duty. In order to avoid it, they may claim a statutory excuse, seek exemption for a hardship or simply just not show up. However, if a juror doesn’t appear in court, they may be summoned again or the court may issue an arrest warrant.

Voir Dire: This french legal term meansĀ  “to speak the truth.” A lawyer’s goal is to select an impartial jury, ruling out anyone who may have prior knowledge or associations that could possibly bias their judgement. Potential jurors are asked a series of questions to weed out those who appear partial.

 

 

 

The Basics: How a Lawsuit Begins

Posted December 9th, 2012 by admin and filed in Uncategorized

The legal process is complex and lengthy. But it must start somewhere. Typically, a lawyer initiates the process unless a person decides to represent himself in a small claims court. In this case, he may file it himself. Any case beyond that does requires a lawyer.

A lawyer begins a lawsuit by preparing documents and filing a complaint with the court. The complaint has the plaintiff (the person who is suing) bringing a complaint against the defendant (the person who is being sued). The plaintiff claims the defendant violated some of his legal rights and is seeking the court for justice and resolution.

A summons goes hand in hand with the complaint. The summons is from the court calling the defendant to respond to the charges. The plaintiff causes “service of process” on the defendant. This means a copy of the complaint and summons is delivered to the defendant by a sheriff, process server, or mail. The court’s rules determines how it is delivered.

The Purpose of a Filed Complaint

The complaint’s purpose is to describe what the litigation is about. It crafts the foundation for the jurisdiction of the court. Also, it serves to notify the defendants so they can gather representation and data to support their defense. It defines the issues of the case and what will be relevant to the ultimate decision in the case.

If the lawyer incorrectly makes the pleading or unveils new information, the court typically allows the pleading to be amended. The Federal Rules require a lawyer to sign a pleading and to indicate the pleading is well grounded and that he is acting in good faith and without wrong motives in filing it. Because of this, lawyers take extra care in crafting and investigating the accuracy of pleadings.

The Supreme Court’s Role in Interpreting the Constitution

Posted November 29th, 2012 by admin and filed in Uncategorized

The role of the Supreme Court in interpreting the Constitution is defined within the confines of the Constitution itself. When the Supreme Court applies the Constitution, it defines and limits the powers of the government. But what inhibits the Supreme Court from supreme rule itself? The other two branches, the legislative and the executive, would simply not allow it.

The Supreme Court justices’ job is not to express their own views about what the law should be but to allow the Constitution itself to direct the law and their decisions regarding it. However, this being said, the Constitution is short and somewhat vague on many issues. The challenge for the Supreme Court is to still use it justly to decide a wide variety of cases.

A theory of Constitution interpretation is essential to the interpretation of Constitutional law. This is necessary because the Constitution itself does not provide a guide for its own interpretation.

A Constitutional theory known as originalism or interpretivism describes the Constitution as having a “changeless nature and meaning.” This theory depends on the original intent of the framers of the Constitution to determine its meaning. The originalists must stick to the original meaning of the text otherwise they consider it a judicial usurpation.

However, non-originalist scholars and judges argue with the concept of originalism. They question, “Who were the drafters whose intent we should focus on?” Because the Constitution was drafted by a number delegates from different states with different view points then ratified, whose intentions do define America’s Constitutional law? And the debate continues.

Steps in the Criminal Process

Posted November 24th, 2012 by admin and filed in Uncategorized

Although the steps in the criminal process do vary from state to state and the federal system, there is a general procedure through which crimes are investigated and judged. There are several game-players in the criminal process, each playing an important role. Of course, the criminal process always starts with the suspicion of a crime by the authorities.

The Steps in the Criminal Process

Step #1: The police investigate the crime. In order to do so, they interview potential witnesses, collect evidence from the crime scene and compare the crime in question to similar incidents. An arrest will be made of probable suspects and they will be taken into custody.

Step #2: A higher ranking police officer or prosecutor must decide whether to formally charge the suspect with a crime and to determine which crime in particular. Once formally charged with a crime the arrestee becomes a defendant. The playing field moves from the police station to the court room.

Step #3: The defendant makes an initial appearance before a low-level magistrate. The defendant will be informed of the charges against him and his basic rights. The judge will also set bail.

Step #4: In a felony case, the next step is a preliminary hearing. A grand jury is called to give further review of felony charges. For misdemeanors, a preliminary hearing isn’t necessary.

Step #5: If the grand jury has indicted the defendant, the indictment is filed with the court. If the grand jury is never called, the prosecutor files a document known as an “information.”

Step #6: The arraignment takes place where the defendant must plead either guilty or not guilty. A plea bargaining may enter the picture at this stage.

Step #7: A defendant who pleads not guilty heads to trial. The defense attorney may make a series of procedural or substantive motions to the court.

Step #8: The trial. The defendant has a right to a jury in felonies and serious misdemeanors. If convicted, the judge or jury will determine the sentence.

Step #9: The defendant may choose to appeal.

Criminal Procedure Defined

Posted November 17th, 2012 by admin and filed in Uncategorized

The criminal procedure branch of the law is perhaps the most well-known to the American public. Television dramas especially bring the functions of this procedure from the court room to America’s living room. It is perhaps the most discussed area of law and one of the most important. It is within criminal procedure that half of the Bill of Rights are focused because the criminal procedure gives incredible power to the state over a person’s future.

Criminal procedure is also referred to as the criminal process and the criminal justice system. In essence, it is the structure through which crimes are investigated, the guilt of criminals adjudicated and punishment enforced.

There are several players in the criminal justice system:

  • Police
  • Prosecutors
  • Defense Attorneys
  • Courts
  • Legal rules
  • The practices and procedures of the court
  • Individuals on trial
  • Government

Serious punishment such as imprisonment or even death can be imposed upon the individuals under trial by the government. The criminal procedure is the mechanism which enforces the sanctions defined by criminal law. The criminal process in America seeks to punish only the guilty while protecting the innocent from injustice. Although different systems are in place in each state and in the federal courts, all must adhere to the regulations of the federal Constitution.

Every player in the criminal procedure plays an important role in which it is vital to seek the truth about the crime and the defendant in all circumstances. The police and prosecutors must determine the accused persons early on in the process before the case is even brought to trial. Of course, seeking the truth in court, the final determination of guilt or innocence in the process, is of absolute importance as well.

A History of Property Rights for a Landlord and a Tenant

Posted November 10th, 2012 by admin and filed in Uncategorized

Property rights, in economic terms, refers to ownership and the specifics of how the good is used. Property rights determine the right to use the good, the right to earn income from it, the right to transfer the good to others, and the right to enforce the owner’s property rights. There is a unique relationship involving a landlord and a tenant established over a leaseĀ  concerning property rights.

Historically, the idea of property was built around the notion of estates in an agrarian society. The land transferred to the tenant for a period of time was traditionally farmland. The lease arrangement was based on a property relationship rather than a contract. The law required little else from either party.

However, there was a significant shift in the way property was defined with the industrial revolution. Beginning in the nineteenth century, urban housing necessitated the redefinition of the landlord and tenant relationship. Tenants became dependent on their landlords to maintain the condition of their residence which wasn’t previously the case.

In 1970, Javins v. First National Realty Corp. was a pivotal case for landlord and tenant property rights by the U.S. Court of Appeals fro the District of Columbia. First National was going to evict Javins for unpaid rent. However, the tenant argued the rent hadn’t been paid because the housing code violations in their apartment gave them the right to a set off in damages equal to the rent due.

Consequently, the court agreed. The lease was handled as a contract. The court concluded a warranty of habitability which requires the landlord to keep the premises in compliance with the housing code. More power was given to the tenant as a result.

Property Law

Posted October 27th, 2012 by admin and filed in Uncategorized

Although property law seems like it should be as simple as someone owns something therefore it is theirs and they can do with it what they please. However, property law isn’t quite so cut and dry. In fact, the distinctions of property law in America’s legal system can be traced back as far as feudalism. Some medieval precedents still bear witness today in how property law is handled.

Property law deals with tangible and intangible property. Intellectual property is an example of an intangible form of property. This includes copyrights, trademarks and patents. Other examples of intellectual property include financial investments like stocks, bonds, mutual funds, and trusts. It is difficult to define property law solely based on ownership. Instead it is considered to involve a bundle of rights. This means there is actually a variety of legal relationships people can have with respect to valuable interests and resources.

Defining Property Ownership

These parameters assist in defining the terms of ownership.

  • Liberty to use. The owner of an item considered property can use it whenever he chooses.
  • Right to exclude. The owner of an item considered property can prevent others from using it.
  • Power to transfer. The owner of an item considered property is free to sell it, give it away and to determine what happens to it upon his death.
  • Immunity from damage. No one else is permitted to damage the property.

The debate over defining the parameters of property law as been in existence for quite some time. Three main arguments for the necessity of property law prevail.

  1. Property encourages productive activity.
  2. Property protects political liberty.
  3. Property contributes to human prosperity.

Contract Law

Posted October 20th, 2012 by admin and filed in Uncategorized

Contract law is crucial to how businesses and consumers interact. It ought to be a simple subject but it has been said to be the most challenging subject in the first year of law school. Contract law pertains to all aspects of the making, keeping and breaking promises and agreements. It covers various agreements regardless of who made them or their subject matter.

The focus of contract law is on the future. If someone fails to uphold their part of the agreement in the future, they have broken the contract and must pay the appropriate consequences. Society functions through a variety of agreements and contracts to carry out its transactions. Contract law ensures society will function accordingly. Economic theory states everyone benefits from a contract-based market system because people get what they want and the resources are used most effectively.

General contract law serves as an umbrella to more specialized contract law such as labor law and partnership law. For example, labor law handles collective bargaining agreements between a company and its labor force. Partnership law deals with the agreement between a company’s partners. When a contract or agreement is beyond the scope of a more specialized law field, contract law steps in and covers these disputes. Businesses and consumers alike consult contract lawyers to plan and develop their contracts as well as to resolve any contract disputes.

The purpose of contract law is to resolve disputes which arise from an incomplete transaction. Additionally, it outlines society’s values of freedom and autonomy to make choices in a market economy and democratic society. Contract law denotes security into society’s transactions.