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Law, Justice, and Society:A Sociolegal Introduction

Chapter 7

Civil and Administrative Law

Civil and Administrative LawCivil law is private law in that it governs

transactions between non-government entities such as corporations and private individuals

Civil and Administrative LawDesigned to provide remedies for individuals

harmed by othersTo manage social conflictRestore 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 LawComplaint is filed by plaintiffRedress given in form of

monetary damages (punitive damages) injunctions specific performance (particular actions the

defendant must perform) Defendant may appeal verdict or

judgment to higher court

Civil and Administrative LawBurden 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 LawMany 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

Who is the legal victim? The state The individual

Who Initiates Action? State or federal prosecutor Private party or parties known as plaintiffs

Issue before the courts. Did the defendant violate a criminal code? Did the defendant cause harm to the plaintiff(s)?

Standard of proof Beyond a reasonable doubt Generally, preponderance of evidence. Sometimes extended to clear and convincing evidence

Who has Burden of proof The prosecution Initially the plaintiff, but both parties must “prove” their cases.

What is the remedy sought? Punishment—probation, jail, prison, death. Money or other compensation, punitive damages, resolution of conflict

Rights of the defendant All rights enumerated under the Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendments

Amendments do not apply to private matters; they are rights owed only by the state to individuals

Who has the right to appeal an adverse decision?

The defendant Both the plaintiff and the defendant

Civil and Administrative LawDifferences between criminal and civil law

Civil and Administrative LawDivided into four main categories:

1. Property

2. Contracts

3. Torts

4. Family law


Product of English common law Protection of ownership rights Property: the right of possession or ownership Includes:

personal real intellectual

Pierson v. Post 1804 City of Oakland v. Oakland Raiders 1980

Property 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


Easement: limited right to use the property of another for a specific purpose

Adverse possession generally only affects property abandoned by original

owner

Nuisance doctrine: property owner may not use their property in such a way that it has an unreasonable, adverse affect on other property owners must keep property reasonably safe

Interests in Real Property (cont.)


Bailment: when a person transfers possession of one item to another for a particular purpose with the understanding that it will be returned

A transfer of possession, not ownership

Interests in Personal Property


Legally enforceable promises Elements of a valid contract:

1. At least two parties

2. Must be capable (have legal capacity) of signing a contract

3. Must agree to terms of the contract (assent) in good faith

4. Must have both a promise and consideration

5. Can be either written or verbal

Contracts


Breach of contract: when terms of contract are not met

Uniform Commercial Code Sullivan v. O’Conner 1973 National Labor Relations Board vs. Bildisco &

Bildisco 1984

Contracts (cont.)


The body of law associated with harm caused to the plaintiff by the action/inaction of defendant(s)

Exists 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

Torts


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

Categories of Torts


Challenge causal and duty issues Affirmative defenses:

contributory negligence: if an injured party is partially responsible for their injuries, they are barred from recovering from a tortfeasor

comparative negligence: apportions responsibility consent and immunity (sovereign immunity)

Defenses to Torts


An effort to limit what is seen as frivolous lawsuits

Has become a highly politicized issueReduce the “sue the bastards” attitude

Tort Reform


Focused on dissolution of marriages Marriage is a legal contract Requirements for marriage:

license legal capacity (age, sound mind) presence of someone legally permitted to acknowledge

marriage witnessed marriage vows

Common law marriage DOMA (1996)—same sex couples cannot marry

Family Law


Requires grounds No-fault Major fault Annulment: legal declaration that not all

requirements were met, ergo, marriage never existed

Divorce

Civil and Administrative LawDivision of property

Dual property state All-property state

Child custody: based on custodial status of parents


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


The role of women Increasing mobility Employment and education opportunities Technological changes in fertility science

Forces Affecting Marriage and the Family


Branch of public law involving governmental administrative agencies

Include the making, enforcement, and adjudication of regulatory agendas

Investigates complaints, conducts onsite inspections, and requires annual reports

Hearings represented by juries no juries appealed to civil courts

Administrative and Regulatory Law

Civil and Administrative LawAdministative Procedure Act (APA) of

1946 established the basic procedural standards for federal agencies

Administrative agencies have an almost exhaustive spectrum of functions (OSHA, FDA, SEC, etc.)


Appeals: Chevron Deference

Administrative and Regulatory Law (cont.)


Not reported by UCR People who define crime and its seriousness same

people who have vested interests in businesses Administrative agencies often run by business

people who go in and out of government and business

Agencies are not under USDOJ, although criminal charges can be pressed

Administrative Law and Corporate Crime


Sarbanes-Oxley Act White Collar Crime Penalty Enhancement Act Recent court cases:

WorldCom Adelphia Communications Corp Enron

Changes to Administrative Laws