Law

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Posted by kaori 02/27/2009 @ 00:02

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The HopeLine award, which recognizes members of law enforcement for their work in domestic violence prevention and awareness, was given today at the National Sheriffs' Association's annual conference in Ft. Lauderdale, Fla....
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The Shuman Law Firm Investigates Skilled Healthcare Group, Inc. - GlobeNewsWire (press release)
The Shuman Law Firm represents investors throughout the nation, concentrating its practice in securities class actions and shareholder derivative litigation. CONTACT: The Shuman Law Firm Kip B. Shuman, Esq. kip@shumanlawfirm.com Rusty E. Glenn,...
Arizona aims for stricter immigration enforcement laws - SmartBrief
If the bill is passed, Arizona would become the first state to criminalize the presence of illegal immigrants by expanding its law against trespassing. Under the proposal, law enforcement authorities must determine an individual's immigration status if...
Crawford's interim chief revamping law enforcement - Chadron Record
By KERRI REMPP, Record staff writer Tuesday, June 23, 2009 While unsure of how long his tenure as Crawford's police chief will last, Guy Turcotte is wasting no time in implementing new programs and policies that he says will improve the city's law...

Law

A trial in the Ottoman Empire, 1879, when religious law applied under the Mecelle.

Law governs a wide variety of social activities. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while Tort law allows claims for compensation if an individual or their property is injured or harmed. If the harm is criminalised in penal code, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law regulates the activities the administrative agencies of government, while International law governs affairs between sovereign nation states in activities ranging from trade, environmental regulation or military action.

Legal systems elaborate rights and responsibilities in a variety of ways. A basic distinction is generally made between civil law jurisdictions and systems using common law. In some countries, religion informs the law. Scholars investigate the nature of law through many perspectives, including legal history and philosophy, or social sciences such as economics and sociology. The study of law raises important and complex issues concerning equality, fairness, liberty and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." The central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.

All legal systems deal with similar issues and behaviors, but each country categorises and identifies its legal standards and principals in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects", although there are many further disciplines which may be of greater practical importance.

International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.

The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law. Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France.

Criminal law (also known as penal law) pertains to crimes and punishment. It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact. Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. The paradigm case of a crime lies in the proof, in the concept of beyond reasonable doubt, the judgement that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act). Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However for so called "strict liability" crimes, an actus reus is enough. Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.

Acts of crime include murder, assault, fraud and theft. In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another example is in the 19th century English case of R v Dudley and Stephens, which tested a defence of "necessity". The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.

Criminal law offences are viewed as offences against not just individual victims, but the community as well. The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v …" or "R (for Rex or Regina) v …" Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation. On the international field, 108 are members of the International Criminal Court, which was established to try people for crimes against humanity.

Contract law regulates the exchange of promises between parties to perform or refrain from performing an act enforceable in a court of law. Contracts can be formed from oral or written agreements. The concept of a "contract" is based on the Latin phrase pacta sunt servanda (agreements must be kept). In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere puff, a gimmick. But the court of appeal held that to a reasonable man Carbolic had made a serious offer. People had given good consideration for it by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".

This became the basis for the four principles of negligence; (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause, or not too remote a consequence, of her harm. Another example of tort might be a neighbour making excessively loud noises with machinery on his property. Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts, such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity.

Property law governs valuable things that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers, cars, jewelry, and sandwiches, or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. An example of a basic case of most property law is Armory v Delamirie. A chimney sweep's boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice's attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keeper") until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Physical possession is nine tenths of the law, but not all.

This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner. By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts are conceptualised as rights good between individuals. The idea of property raises many further philosophical and political issues. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.

Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Business speculators using trusts had just recently caused a stock market crash. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Another example of a trustee's duty might be to invest property wisely or sell it. This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.

Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and overlap.

In general, legal systems can be split between civil law and common law systems. The term civil law should not be confused with civil law as a group of legal subjects, as distinct from criminal or public law. A third type of legal system—still accepted by some countries—is religious law, based on scriptures and interpretations thereof. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail.

Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom. Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Modern civil law systems essentially derive from the legal practice of the Roman Empire whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian I codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." Western Europe, meanwhile, slowly slipped into the Dark Ages, and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law and Islamic law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions. Today countries that have civil law systems range from Russia and China to most of Central and Latin America.

Common law and equity are systems of whose distinction derives from the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). In addition to precedent, common law systems are codified by governments enabled to pass new laws and statutes. Common law originated from England and has been adapted by almost every country once tied to the British Empire; with the exceptions of Malta, Scotland, South Africa, the U.S. state of Louisiana and the Canadian province of Quebec. Common law's roots are to be found in in medieval England, and was influenced by the Norman conquest of England which introduced legal concepts and institutions from its own and possibly also Islamic law. Common law further developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon. In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.

Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively, which at least one scholar has claimed had an influence on the early development of the common law, as well as some influence on civil law. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.

Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law. Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.

The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality. By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if ... then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German, and French.

The Old Testament is likely the oldest surviving body of law still relevant to modern legal systems. It dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens, and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However. Athens had no legal science, and no word for "law" as an abstract concept. Yet Ancient Greek law contained major constitutional innovations in the development of democracy.

Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated. Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations, and underwent major codification during Justinian I. Although it declined in significance during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent, which later became the common law. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property. As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.

Islamic law and jurisprudence developed during the Middle Ages. The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later English common law system. This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily. Between the 8th and 11th centuries, Maliki law developed several legal institutions that were parallel with later common law institutions.

Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia. This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights. Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.

The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?". John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.

Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as "moral" or "immoral".

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. Kelsen believed that although law is separate from morality, it is endowed with "normativity"; meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.

Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law. Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept", that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.

In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics. The discipline arose partly out of a critique of trade unions and U.S. antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.

The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs. Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes. Coase used the example of a nuisance case named Sturges v Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move. Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this. So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe. Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.

Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology. The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms. Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism. Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.

Law is less a body of static rules than a "dynamic process by which rules are constantly changed, created, and molded to fit particular situations." Changes are continuously made by various institutions in a society. Law's main institutions in liberal democracies are the independent judiciaries, the justice systems, the representative legislatures or parliaments, an accountable executive, a competent and non-corrupt bureaucracy, a police force, a civilian control of the military and a robust legal profession ensuring people's access to justice and a pluralistic civil society—a term used to refer to the social institutions, communities and partnerships that form law's political basis.

John Locke, in his Two Treatises of Government, and Baron de Montesquieu in The Spirit of the Laws, advocated for a separation of powers between the political, legislature and executive bodies. Their principle was that no person should be able to usurp all powers of the state, in contrast to the absolutist theory of Thomas Hobbes' Leviathan. Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. Modern international organisations tend to focus on the importance of rule of law and good governance, while other authors explore the relation of rule of law and efficient governance in modern states.

A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, answering up to a supreme legal authority. In the United States, this is the Supreme Court; in Australia, the High Court; in the UK, the House of Lords; in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation. For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it.

Some countries allow their highest judicial authority to over-rule legislation they determined as unconstitutional. In in Roe v Wade, the U.S. Supreme Court overturned a Texas law which forbade the granting of assistance to women seeking abortion. The U.S.'s constitution's fourteenth amendment was interpreted to give Americans a right to privacy, and thus a woman's right to choose abortion.

A judiciary is theoretically bound by the constitution, much as legislative bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent. The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature. In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".

Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By the principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral, most countries are bicameral, meaning they have two separately appointed legislative houses. In the 'lower house' politicians are elected to represent smaller constituencies. The 'upper house' is usually elected to represent states in a federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review. One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as a house of review. This can minimise arbitrariness and injustice in governmental action.

To pass legislation, a majority of Members of Parliament must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution will be required, making changes to the law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). But in a presidential system, an executive appoints a cabinet to govern from his or her political allies whether or not they are elected (e.g. the United States or Brazil), and the legislature's role is reduced to either ratification or veto.

The executive in a legal system serve as a government's centre of political authority. In a parliamentary system, as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is chosen by the Prime Minister or Chancellor, whoes office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections. The head of state is apart from the executive, and he/she usually lacks formal political power yet symbolically enacts laws and acts as representative of the nation. Examples include the German president (appointed by the Parliament); the Queen of the United Kingdom (a hereditary title), and the Austrian president (elected by popular vote). The other important model is the presidential system, found in France, the U.S. and Russia. In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which is not accountable.

Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or interior ministry. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.

While military organizations have existed as long as government itself, the idea of a standing police force is relatively modern concept. Mediæval England's system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control. The first modern police were probably those in 17th century Paris, in the court of Louis XIV, although the Paris Prefecture of Police claim they were the world's first uniformed policemen.

Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence. The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit. In fact private companies, especially large ones, also have bureaucracies. Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power. Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support. Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules.

A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to be able to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor (solicitor). As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them. In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association, bar council or law society. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree), and are constituted in office by legal forms of appointment (being admitted to the bar). Most Muslim countries have developed similar rules about legal education and the legal profession, but some of them still allow lawyers with training in traditional Islamic law to practice law before personal status law courts. In China and other developing countries there are not enough law-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.

Once accredited, a lawyer will often work in a law firm, in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel. In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or through freelance work. Many people trained in law put their skills to use outside the legal field entirely. Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field.

Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhouds, churches and religious associations.

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Harvard Law School

Harvard Law School shield.svg

Harvard Law School (also known as Harvard Law or HLS) is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the United States' oldest law school in continuous operation. It is home to the largest academic law library in the world.. HLS is currently ranked the second best law school by U.S. News and World Reports, only behind Yale Law School.

Harvard Law introduced what became the standard first-year curriculum for American law schools—including classes in contracts, property, torts, criminal law, and civil procedure—in the 1870s, under Dean Christopher Columbus Langdell. At Harvard, Langdell also developed the case method of teaching law, which became the dominant model for U.S. law schools.

The current dean of Harvard Law School is Elena Kagan, who succeeded Robert C. Clark in 2003. On January 5, 2009, however, Barack Obama nominated Dean Kagan to be Solicitor General of the United States. Howell Jackson would succeed her as acting dean if replaced; a permanent replacement has yet to be named.

Each cohort in the three-year J.D. program numbers approximately 550 students. The first-year (1L) class is broken into seven sections of approximately 80 students who take most first-year classes together. Harvard Law has 246 faculty members.

Admission to Harvard Law is highly selective: For the class entering in 2008, there were approximately 7200 applicants, of which approximately 11.4% were admitted; 67.9% of those admitted enrolled. For that class, the median GPA for the middle 50% of the students was between 3.74 and 3.95 (out of 4.00) and an LSAT score between 170 and 176 (out of 180). Harvard Law's admissions process includes the unusual feature of telephone interviews conducted amongst students likely to be accepted.

Harvard Law School has produced numerous leaders in law and politics, including the current U.S. President, Barack Obama, six sitting U.S. Supreme Court Justices, including the Chief Justice, John G. Roberts, 149 sitting federal judges, and the current President of Taiwan, Ma Ying-jeou. It is consistently the best represented law school among the faculty at the U.S. law schools and among the attorneys at the top law firms in the U.S. Harvard Law School graduates have accounted for 568 judicial clerkships in the past three years, including 25% of all Supreme Court clerkships. More than 120 from the last five graduating classes have obtained tenure-track law teaching positions.

Harvard Law School's campus is located just north of Harvard Yard, the historic center of Harvard University, and contains several architecturally significant buildings.

Austin Hall, the law school's oldest dedicated structure, was completed in 1884 by architect H. H. Richardson. The law school's student center, Harkness Commons, was designed by Bauhaus founder Walter Gropius, along with several law school dormitories. Together, they make up the Harvard Graduate Center complex. Langdell Hall, the largest building on the law school campus, contains the Harvard Law Library, the most extensive academic law library in the world.

As of 2006, a new complex is scheduled to rise on the northwest corner of the law school campus, to be designed by traditionalist architect Robert A. M. Stern. The complex is set to marry the architectural themes present in Austin and Langdell Halls, as well as the Gropius buildings.

Its origins can be traced to the estate of Isaac Royall, who sold most of his Caribbean slaves and plantations to move to Medford, Massachusetts. His Medford estate, the Isaac Royall House, is now a museum, and includes the only remaining slave quarters in the northeast United States. The estate was passed down to Royall's son, Isaac Royall, Jr., who fled Massachusetts as the American Revolution broke out. Just prior to his death in 1781, Royall, Jr. left land to Harvard, the sale of which was intended for the "endowing of a Professor of Laws at said college, or a Professor of Physics and Anatomy". Harvard took the opportunity to fund its first chair of law. The Royall chair remains today. It traditionally was held by the Dean of the law school, but the current Dean, Elena Kagan, declined the Royall chair, instead giving herself the Charles Hamilton Houston Professorship.

In 1806, the Royall estate in Medford was returned to Royall, Jr.'s heirs, who sold it and donated the proceeds for the formal foundation of Harvard Law School. The Royall family coat-of-arms was adopted as the school crest, which shows three stacked wheat sheaves beneath the university motto (Veritas, Latin "truth").

By 1827, the school, which was down to one faculty member, was struggling. An alumnus stepped in by endowing the Dane Professorship of Law and insisting that it be given to then Supreme Court Justice Joseph Story. Story's belief in the need for an elite law school based on merit and dedicated to public service helped build the school's reputation at the time, although the contours of these beliefs have not been consistent throughout its history. Enrollment remained low through the 19th century as university legal education was considered to be of little added benefit to apprenticeships in legal practice.

In the 1870s, Christopher Columbus Langdell arrived, introducing his new curriculum. Langdell's notion that law could be studied as a "science" gave university legal education a reason for being distinct from vocational preparation.

While the law school had previously been located on Harvard Yard, the new system demanded lecture halls suited to the case law and interrogatory Socratic method of teaching. H. H. Richardson would later design the law school's first independent home, the Romanesque Austin Hall, to the north of the Yard, with these needs in mind. This would come to form the nucleus of the current law school campus.

As the 20th century dawned, Dean Langdell's innovations became standard in law school curricula across the country. The school also became the first to elevate legal education to a graduate-only discipline. Yet new theories, such as legal realism, blossomed at Yale and Columbia, while Harvard faculty members were generally known for their conservative approach.

As it rose to preeminence among law schools in the United States, Harvard attracted significant criticism for many perceived shortcomings.

Harvard Law was often believed to be a competitive environment. For example, Dean Berring of Berkeley Law once stated that he "view Harvard Law School as a samurai ring where you can test your swordsmanship against the swordsmanship of the strongest intellectual warriors from around the nation." This was possibly historically true. When Langdell developed the original law school curriculum, Harvard University President Charles Eliot told him to make it "hard and long." The school maintained a relatively uncompetitive admissions process, but "weeded out" a large number of first year students. This gave rise to the infamous legend of a dean at the school telling incoming students, "Look to your left, look to your right, because one of you won't be here by the end of the year." Novels such as Scott Turow's One L and John Jay Osborn's The Paper Chase describe such an environment.

The school has also been criticized for extremely large first year class sizes (at one point there were 140 students/classroom; as of 2001 there are 80), a cold and aloof administration, and an inaccessible faculty. The latter stereotype is a central plot element of The Paper Chase and appears in Legally Blonde. Inaccessibility of the faculty was possibly a side effect of Harvard's original admissions process, which may have annoyed faculty by giving them less than stellar students.

This Harvard Law persisted into the latter half of the 20th century, but bears no resemblance to the modern school. The school eventually implemented the once-criticized but now dominant approach pioneered by Dean Robert Hutchins at Yale Law School: It shifted the competitiveness to the admissions process. Robert Granfield and Thomas Koenig's 1992 study of Harvard Law students that appeared in The Sociological Quarterly found that students "learn to cooperate with rather than compete against classmates," and that contrary to "less eminent" law schools, students "learn that professional success is available for all who attend, and that therefore, only neurotic "gunners" try to outdo peers." According to the ABA, in 2007-2008 the school admitted only 11.8% of applicants and no students left as a result of "academic" shortcomings.

Dean Robert C. Clark is generally given credit for "break the logjam" of the school's tenure battles and other political disputes. Above all, many of the school's shortcomings were addressed head-on by the administration of Dean Elena Kagan after 2003.

Elena Kagan sought to reverse many of the persistent stereotypes about the school when she assumed its deanship in 2003, promising reforms. She gives students her personal e-mail address, holds office hours, has successfully cut first year class sizes in half, and has been given credit for a host of quality-of-life improvements at the law school, including an ice-skating rink (during the winter) and a beach volleyball court (the rest of the year) on campus, free coffee in classroom buildings, free tampons in campus public restrooms, and the renovation of several of the school's facilities. She has also managed to boost the school's involvement in international and public interest law, and has hired significant quantity of prominent new faculty members.

The number of students interested in public interest law positions has expanded as Harvard has begun to offer summer funding for public interest internships and low income loan reduction plans for alumni who take on careers in the public interest and academia. For example, beginning with the J.D. Class of 2011, students who pledge to spend five years working for nonprofit organizations or the government after graduation will receive a grant in the full amount of their tuition during their third year, and are entitled to keep the grant if they remain in such positions for the five-year period. Tuition for the 2008-2009 academic year is $41,900.

In 2006, the faculty voted unanimously to approve a new first-year curriculum, placing greater emphasis on problem-solving, administrative law, and international law. The new curriculum is being implemented in stages over the next several years. In 2008, the faculty voted to eliminate letter grades and move to a pass/fail grading system, effective for the class entering in the Fall of 2008.

In addition, a vast new complex under construction on the northwest part of the law school campus is intended to expand classroom space for additional courses and create more space for an expanding clinical program. Several dormitories are also set to be renovated.

One recent change was not implemented by Kagan but by the faculty. In late 2008, they reached consensus that the school should move toward a non-letter grading system, much like that in place at Yale and Stanford Law Schools. The system will apply for half the Class of 2010 and fully starting with the Class of 2011.

In 2009, Kagan was nominated Solicitor General of the United States by President Barack Obama. If confirmed, she would take a leave of absence from the faculty and resign the deanship. Harvard University President has named HLS professor Howell Jackson as acting dean.

The Harvard Law School is home to the Berkman Center for Internet & Society, which focuses on the study and construction of cyberspace. The Center sponsors conferences, courses, visiting lecturers, and residential fellows. Members of the Center do research and write books, articles, and weblogs with RSS 2.0 feeds, for which the Center holds the specification. The Center's present location is a small Victorian wood-frame building which sits next to the larger-scale buildings of the Harvard Law School campus. It is in the process of relocating to a larger site on the campus' perimeter. Its newsletter, "The Filter", is on the Web and available by e-mail, and it hosts a blog community of Harvard faculty, students and Berkman Center affiliates. The Berkman Center is funding the Openlaw project. One of the major initiatives of the Berkman Center is the OpenNet Initiative, which is a joint worldwide study of the filtering of the web, along with the Universities of Toronto and Cambridge (UK). The Berkman Center was a co-sponsor of Wikimania 2006. Charles Nesson, Lawrence Lessig, Jonathan Zittrain, John Palfrey, William W. Fisher, and Yochai Benkler hold appointments at the Berkman Center.

Established in the fall of 2005 by Professor Charles Ogletree, the Charles Hamilton Houston Institute for Race and Justice seeks to honor the contributions of Charles Hamilton Houston. The Institute carries forth Houston's legacy by serving as a hub for scholarship, legal education, policy analysis, and public forums on issues central to current civil rights struggles.

The Labor and Worklife Program is a forum for research and teaching on the world of work and its implications for society. The program brings together scholars and policy experts from a variety of disciplines, including scholars of labor studies and an array of international intellectuals, to analyze critical labor issues in the law, economy, and society. As a multidisciplinary research and policy network, the LWP organizes projects and programs that seek to understand critical changes in labor markets and labor law, and to analyze the role of unions, business, and government as they affect the world of work. It also provides unique education for labor leaders throughout the world via the Harvard Trade Union Program, founded in 1942, which works closely with trade unions around the world to bring excellence in labor education to trade union leadership. By engaging scholars, students, and members of the labor community, the program coordinates legal, educational, and cultural activities designed to improve the quality of work life. It regularly holds forums, conferences, and discussion groups on labor issues of concern to business, unions, and the government.

The Harvard Legal Aid Bureau is the oldest student-run legal services office in the country, founded in 1913. The Bureau's mission is to provide an important community service while giving student attorneys the opportunity to develop professional skills as part of the clinical programs of Harvard Law School.

The Harvard Legal Aid Bureau is a student-run law firm. The Bureau serves clients in housing law (landlord-tenant relations, public housing, subsidized housing), family law (divorce, custody, paternity, child support), government benefits (Social Security, unemployment benefits, Veterans' benefits, welfare), and wage and hour cases (including unpaid or underpaid wages, benefits, and overtime). The Bureau employs seven supervising attorneys and elects approximately twenty student members annually. Students practice under the supervision of admitted attorneys; however, students are primarily casehandlers on all matters. As a result, students gain firsthand experience appearing in court, negotiating with opposing attorneys, and working directly with clients. Students receive both classroom and clinical credits for their work at the Bureau.

Unlike most clinical programs at Harvard (or other schools), the Bureau is a two-year commitment. This gives clients a chance to have a much more sustained and in-depth academic experience. In addition to the substantive legal experience, students gain practical experience managing a law firm. The student board of directors makes all decisions regarding case intake, budget management, and office administration.

Famous participants include Supreme Court Justice William J. Brennan, Massachusetts Governor Deval Patrick, activist and first lady Michelle Obama, and professors Erwin Chemerinsky and Laurence Tribe.

Located in Boston’s Jamaica Plain neighborhood, the WilmerHale Legal Services Center (formerly the Hale and Dorr Legal Services Center) is Harvard Law School’s oldest and largest clinical teaching facility. Students working at the Center are placed in one of its clinics housed in five substantive practice groups and work with clinical instructors, experienced practitioners and mentors, who supervise student work and provide guidance as students build and manage their own caseload. The Center provides substantive training in each practice area and also offers general instruction on topics such as client interviewing and intake, case management, legal investigation and discovery, creative legal analysis, research and drafting.

Two additional programs affiliated with Harvard Law School are the Ames Foundation and the Selden Society.

Students of the Juris Doctor (JD) program are involved in preparing and publishing the Harvard Law Review, one of the most renowned university law reviews, as well as a number of other law journals and an independent student newspaper. The Harvard Law Review was first published in 1887 and has been staffed and edited by some of the school's most notable alumni. In addition to the journal, the Harvard Law Review Association also publishes The Bluebook: A Uniform System of Citation, the most widely followed authority for legal citation formats in the United States. The student newspaper, the Harvard Law Record, has been published continuously since the 1940s, making it one of the oldest law school newspapers in the country, and has included the exploits of fictional law student Fenno for decades.

Rutherford B. Hayes, the 19th President of the United States, and Barack Obama, the 44th and current President of the United States, graduated from HLS. Obama was the first African-American president of the Harvard Law Review and is now the first African-American President of the United States. His wife Michelle Obama is also a graduate of Harvard Law School. Ma Ying-jeou, the current president of the Republic of China/Taiwan, received his SJD from Harvard. Past presidential candidates who are HLS graduates include Mitt Romney, Michael Dukakis and Ralph Nader. A plurality of US Senators with law degrees, and a significant number of Massachusetts governors, graduated from HLS as well.

Fourteen of the school's graduates have served on the Supreme Court of the United States, more than any other law school, and another four justices attended the school without graduating. Six of the current nine members of the court attended HLS: Chief Justice John Roberts, and Associate Justices Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Ginsburg transferred to and graduated from Columbia Law School. Past Supreme Court justices from Harvard Law School include Harry Blackmun, Louis Brandeis, Felix Frankfurter, Lewis Powell (LLM), and Oliver Wendell Holmes, Jr.

Attorneys General Alberto Gonzales and Janet Reno, among others, and noted federal judges Richard Posner of the Seventh Circuit Court of Appeals, Judge Michael Boudin of the First Circuit Court of Appeals, Laurence Silberman of the D.C. Circuit Court of Appeals, and Pierre Leval of the Second Circuit Court of Appeals, among many other judicial figures, graduated from the school. The current Commonwealth Solicitor General of Australia Stephen Gageler SC graduated from Harvard with an LL.M.

Famous legal academics who graduated from Harvard Law include Erwin Chemerinsky, Ronald Dworkin, Susan Estrich, Arthur R. Miller, William L. Prosser, John Sexton, Kathleen Sullivan, Cass Sunstein, and Laurence Tribe.

In addition to their achievements in law and politics, Harvard Law alumni have also excelled in other fields. Many have gone on to become influential journalists, writers, media and business leaders and even professional athletes.

A number of notable novels have been inspired by the student experience at the school.

The Paper Chase is a novel set amid a student's first ("One L") year at the school. It was written by John Jay Osborn, Jr., who studied at the school. The book was later turned into a film and a television series (see below).

Scott Turow, a novelist, also wrote a book about his experience as a first-year law student at Harvard, One L.

The book Legally Blonde, by Amanda Brown, is about a sorority girl enrolling at Stanford Law School, much to the scrutiny of her classmates and professors. When the book was adapted into a feature film (which itself spawned both a sequel and a musical) the setting was changed to Harvard Law School. Several scenes from the first movie were filmed on the grounds of Harvard.

Less notable than the above novels, several memoirs have also been written by former students at the school. Richard Kahlenberg's account of his experiences, Broken Contract: A Memoir of Harvard Law School. Kahlenberg breaks from the other two authors and describes the experience of the final two years at the school, claiming that the environment drives students away from their public interest aspirations and toward work in high-paying law firms.

The book Brush With the Law, by Robert Byrnes and Jaime Marquart, is an account of the authors' three years in Stanford and Harvard Law Schools. The authors indulge in alcohol, drugs (Marquart has a penchant for crack cocaine), womanizing, and gambling before passing their exams and moving on to a successful legal career.

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Scots law

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Scots law is a unique legal system with an ancient basis in Roman law. Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources. Thus Scotland has a pluralistic, or 'mixed', legal system, of which South African law is comparable, and, to a lesser degree, the partly codified pluralistic systems of Louisiana and Quebec.

Since the Acts of Union, in 1707, it has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales, but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaty of Rome, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.

Although there are many substantial differences between Scots law, English law and Northern Ireland law, much of the law is also similar, for example, Commercial law is similar throughout all jurisdictions in the United Kingdom, as is Employment Law. Different terminology is often used for the same concepts, for example, arbiters are called arbitrators in England. Another example would be the third verdict available to judges and juries (which consist of 15 members) in criminal cases: 'not proven'. The age of legal capacity under Scots law is 16, whereas under English law it is 18.

Many areas of Scots law are legislated for by the Scottish Parliament, whose authority devolved from the Parliament of the United Kingdom (Westminster). Areas of Scots law over which the Scottish Parliament has competency include health, education, criminal justice, local government, environment and civil justice amongst others. However, certain powers are reserved to Westminster such as defence, international relations, fiscal and economic policy, drugs law, and broadcasting, amongst others. The Scottish Parliament does retain limited tax raising powers.

The Scottish legal profession has two main branches, Advocates and Solicitors.

Advocates, the equivalent of the English Barristers, belong to the Faculty of Advocates which distinguishes between junior counsel and senior counsel, the latter also known as Queen's Counsel. Advocates specialise in presenting cases before courts and tribunals, with near-exclusive (see solicitor-advocates below) rights of audience before the higher courts, and in giving legal opinions. They usually receive instructions indirectly from clients through solicitors, though in many circumstances they can be instructed directly by members of certain (professional) associations.

Furthermore, it used to be the case that Advocates were completely immune from suit etc while conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to public interest; and Advocates are required to accept clients, they cannot pick and choose. However, the seven-judge English ruling of Arthur Hall v Simmons 2000 (House of Lords) declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in Wright v Paton Farrell obiter insofar as civil cases are concerned.

Solicitors, more numerous, are members of the Law Society of Scotland and deal directly with their clients in all sorts of legal affairs. In the majority of cases they present their client's case to the court, and while traditionally they did not have the right to appear before the higher courts, since 1992 they have been able to apply for extended rights, becoming solicitor-advocates - see below.

A solicitor also has the opportunity to become a notary public. These, like their continental equivalent, are members of a separate profession.

While Solicitors and Advocates are distinct branches of the Scottish legal profession, there has been a blurring of this position in recent years. The Law Society of Scotland may, upon proof of sufficient knowledge through exams, practice, training etc, grant rights of audience before the higher courts to solicitors. This is due to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

By the late 11th century Celtic law applied over most of Scotland, with Old Norse law covering the areas under Viking control (resulting in Udal Law still in very limited force in Orkney and Shetland).

In following centuries as Norman influence grew and feudal relationships of government were introduced, Scoto-Norman law developed which was initially similar to Anglo-Norman law but over time differences increased (especially after 1328, with the end of the wars of Scottish Independence). Early in this process David I of Scotland established the office of Sheriff with civil and criminal jurisdictions as well as military and administrative functions. At the same time Burgh courts emerged dealing with civil and petty criminal matters, developing law on a continental model, and the Dean of Guild courts were developed to deal with building and public safety (which they continued to do into the mid 20th century).

From the end of the 13th century the Scottish parliament of the Three Estates developed Statute Laws.

Some Scots common law is based on the 6th century system of Roman law which applied in the Eastern Roman empire around the time of Justinian. This occurred because, prior to the Reformation in 1560, much of the jurisdiction of private law came under the Church courts administering Canon law with an ultimate right of appeal to the Papal court at Rome. This was the basis of matrimonial law, and influenced branches such as the law of succession and contract law. For centuries Scotland was more in touch with mainland European countries than with neighbouring England, and many Scots lawyers had part of their legal education abroad, particularly in the Netherlands. As a result they were influenced by studying Roman law in continental universities.

From the 12th century the assimilation of the Celtic church into the Roman Catholic Church brought Canon law and Church courts dealing with areas of civil law. This influence extended as Medieval Scots students of Civil or Canon Law mostly went abroad, to universities in Italy, France, Germany or the Netherlands. (The English universities, Oxford and Cambridge, were closed to Scots, or anyone who did not subscribe to the articles of the Church of England, until the mid 19th century.) The University of St. Andrews (1410) included the teaching of Civil and Canon Law in its purposes, though it appears that little or no such teaching took place. The University of Glasgow (1451) was active in law teaching in its early years, one scholar there being William Elphinstone, who then studied abroad and went on to found the University of Aberdeen (1495) which taught canon law until the mid 16th century. Studying on the European mainland continued to be the norm for Scottish law students until the 18th century.

In the early 16th century a costly war pushed James V of Scotland to do a deal with Pope Paul III for funds in the form of a tithe on the church in exchange for agreeing to found a College of Justice, in 1532. By 1560 the Reformation removed Papal authority and Canon Law jurisdiction was taken over by the Commissary Courts, whose jurisdiction, along with that of the Scottish Court of Exchequer was subsumed into that of the Court of Session in the 19th century.

The 1707 Treaty of Union, confirmed in the Act of Union, preserved the Scottish legal system, with provisions that the Court of Session or College of Justice (and the Court of Justiciary) ... remain in all time coming within Scotland, and that Scots Law remain in the same force as before. The Parliament of Great Britain was now unrestricted in altering laws concerning public right, policy and civil government, but concerning private right, only alterations for the evident utility of the subjects within Scotland were permitted. The Scottish Enlightenment then reinvigorated Scots law as a university-taught discipline. The transfer of legislative power to the Westminster parliament and the introduction of appeal to the House of Lords brought further English influence and it is sometimes stated that this marked the introduction of common law into the system, but Scots common law incorporates different principles and makes use of legal writings which long predate the Union (see Legal institutions of Scotland in the High Middle Ages).

Appeal decisions by English lords raised concerns about this appeal to a foreign system, and in the late 19th century Acts allowed for the appointment of Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords. Nowadays the House of Lords judicial committee usually has a minimum of two Scottish Judges to ensure that some Scottish experience is brought to bear on Scottish appeals.

The Scottish Highlands had been affected by Scots law but remained largely independent, with remnants of Celtic law still in force. Their involvement in Jacobitism led to a series of Acts attempting to crush the Scottish clan structure and bring them firmly within Scots law. The Heritable Jurisdictions Act of 1747 removed the virtually sovereign power the chiefs had over their clan, but probably affected other hereditary offices more, with the result that sheriffs-depute, who had actually done the work for the hereditary office holders, became crown appointees and took over the role.

Scots law has continued to change and develop, with the most significant change coming with the establishment of the Scottish Parliament as described below.

Scots Law is based upon the Common Law. This simply means that the crimes are categorised by the law of the land rather than a statute setting out the actual offence. For example, murder and theft are not defined in statute as offences, but come under Common Law. This has sources in custom, in legal writings and in previous court decisions. Unlike in English law, the use of such precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent.

The principles of natural justice and fairness have always formed a source of Scots Law and are applied by the courts without distinction from the law. Thus Scots Law does not have the complex construct of "Equity" applicable in England.

Certain texts, which come mostly from the "17th century, 18th century and 19th century" can be used as authority in the courts in the absence of statute or case law. Their authors include Craig, Jus Feudale (1655) for feudal law, Stair, The Institutions of the Law of Scotland (1681) for civil law and David Hume (nephew of the namesake philosopher David Hume) for criminal law. These works may be treated as authoritative sources of the law and are described as "institutional" works. Other authorities may enjoy a particular reputation as being reliable statements of what the law is, if not absolutely authoritative. An example is Sir Gerald Gordon's Criminal Law of Scotland, (edited by Michael Christie), 3rd edition, 2001.

Laws can be set by both the Scottish and Westminster Parliaments: the Scottish Parliament dealing with devolved matters while Westminster concerns itself with reserved matters. Also, the European Union. Acts of the Parliaments can also provide for more detailed laws made by secondary legislation known as Statutory Instruments which are then passed through Parliament more quickly and simply than Acts.

Some statutes of the pre-1707 Estates of Parliament are still in force, and are written in the Scots language. In 1999 the devolved Scottish Parliament with legislative competence over any matter not reserved to the United Kingdom Parliament at Westminster was established. Winnie Ewing (a Scottish National Party MSP) presided over the opening, and famously declared 'The Scottish Parliament, adjourned on the 25th day of March in the year 1707, is hereby reconvened'.

The Westminster Parliament remains the "sovereign legislature" as defined by Constitutional lawyers, retaining all legislative power in relation to Scotland, but the new Scottish Parliament at Holyrood makes full use of the powers given by the devolution settlement to set laws affecting the domestic affairs of Scotland.

The powers of the Scottish Parliament are set out in the Scotland Act 1998.

The Westminster Parliament serving the whole of the United Kingdom has set Statute law for Scotland since 1707, and continues to deal with reserved matters. Acts of the United Kingdom Parliament can apply to the whole of the UK including Scotland, to Scotland alone or not to Scotland at all. The Scotland Act 1998 does not affect the power of the Westminster Parliament to legislate as regards Scotland, but during its passage the Sewel Convention was established, which effectively requires the consent of the Scottish Parliament to Westminster legislation on devolved matters. Until 2007 both Parliaments were controlled by the same party (Labour), and it remains to be seen whether this convention will continue under the Scottish National Party minority government.

European Union Regulations and many parts of the Treaty of Rome are directly applicable as law. EU directives passed by the Council of Ministers require member states to legislate to implement them.

Scottish courts are required to interpret legislation in a way compatible with the European Convention on Human Rights (an instrument of the Council of Europe not of the European Union). If the Scottish Parliament legislates contrary to the Convention the law can be struck down by the courts. Courts may make a declaration that an Act of the Westminster Parliament is incompatible with the Convention- however this doesn't render the legislation void since the choice to change it is ultimately up to Westminster.

The principal division in Scots Law is that between public law involving the state in some manifestation, and private law where only private persons are involved. Public law covers constitutional law, administrative law and criminal law and procedure. Private law covers those defined under The Law of Persons, including children, adults, partnerships (where the partnership is a separate "juristic person" from the individuals in it, which is not the case in English law) and limited companies.

See also Law of obligations.

Contract is created by bilateral agreement and is distinguished from unilateral promise, the latter being recognised as a distinct and enforceable species of obligation in Scots Law. The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract, i.e. a contract where only one of the parties comes under any duties to the other (e.g. a contract to perform services for no consideration).

Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testamentary provision and an offer will not be a promise.

Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of Tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault, defamation are used in both systems, their technical meanings differ.

The landmark decision on establishing negligence, for Scotland and for the rest of the United Kingdom, is the Scottish case of Donoghue v. Stevenson AC 562 which, while strictly a Scottish case, quickly established itself as the leading authority in the field of negligence in English Law also.

Mrs Donoghue had been enjoying an ice cream with ginger beer her friend had bought her in Mr Minchella's café in Paisley, when she emptied the opaque ginger beer bottle out and the decomposing remains of a snail emerged. Interestingly owing to quirks of the case it was never established that the drink was ginger beer in the literal sense. It is common in Paisley and surrounding areas to use the term 'ginger' to describe a variety of carbonated drinks. The case however proceeds on the assumption that ginger beer was served in opaque bottles preventing discovery of the snail, had it actually been a clear bottle the case may have gone differently. Her distress and subsequent illness was such that she was determined to bring an action for damages — but the poor woman had no contract with the café proprietor as her friend had paid, so she sued the manufacturer for his negligence. The case of the snail in the bottle was taken to the House of Lords who found that the manufacturer does indeed have a duty of care, subject to restrictions. This decision had influence in many countries and established the "neighbour principle" in Scots Law. After the question of if there were grounds for action was answered "the action was settled before any proof was held" and it has never been proven, before a court, that the snail had entered the bottle at all.

Scots Law of Property distinguishes between Heritable property, such as land and buildings, and Moveables, which include including physically moveable objects, title to which normally passes only on delivery; and moveable rights including intellectual property such as patents, trade marks and copyrights. It is worth noting that agreement on an offer for property purchase is a legally binding contract, resulting in a system of conveyancing where buyers get their survey done before making a bid to the seller's solicitor, and after a closing date for bids the seller's acceptance is binding on both parties, preventing gazumping. In recent times sales of house by way of offering to sell to the first party to make an unconditional offer of a fixed price has eroded the traditional offers over system.

The feudal system lingered on in Scots law on land ownership, so that a landowner as a vassal still had obligations to a feudal superior including payment of feu duty. This enabled developers to impose perpetual conditions dictating how buildings had to be constructed and maintained, but added complications and became abused to demand payments from vassals who wanted to make minor changes. In 1974 legislation began a process of redeeming feu duties so that most of these payments were ended, but it was only with the attention of the Scottish Parliament that a series of acts were passed to end the disadvantages while keeping the benefits of the system, the first in 2000, the Abolition of Feudal Tenure etc. (Scotland) Act 2000, coming into force on November 28, 2004.

The Northern Isles used a system called Udal Law, owing to their former status as territory of Norway. However, following legal reforms in November 2004, the significance of udal law in those islands is greatly reduced.

Intellectual property (IP) in Scotland is governed mostly by statute, however it was a Scottish case Wills v Zetnews (1997 FSR 604) that first applied the existing copyright law to the internet by categorising the net as a cable programme. This definition has now been superseded by European directives but the principle still stands.

Scots criminal law relies far more heavily on Common Law than in England. Scots criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences such as mobbing and breach of the peace. Some areas of criminal law, such as misuse of drugs and traffic offences appear identical on both sides of the Border. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment.

The Crown Office and Procurator Fiscal Service provides independent public prosecution of criminal offences in Scotland (as the more recent Crown Prosecution Service does in England and Wales) and has extensive responsibilities in the investigation and prosecution of crime. The Crown Office is headed by the Lord Advocate, in whose name all prosecutions are carried out, and employs Advocates Depute (for the High Court of Justiciary) and Procurators Fiscal (for the Sheriff Courts) as public prosecutors.

Private prosecutions are very rare in Scotland. These require "Criminal Letters" from the High Court of the Justiciary. Criminal Letters are unlikely to be granted without the agreement of the Lord Advocate.

The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial. The third verdict resulted from historical accident, in that there was a practice at one point of leaving the jury to determine factual issues one-by-one as "proven" or "not proven". It was then left to the judge to pronounce upon the facts found "proven" whether this was sufficient to establish guilt of the crime charged. Now the jury decides this question after legal advice from the judge, but the "not proven" verdict lives on. The "not proven" verdict is often taken by juries and the media as meaning "we know they did it but there isn't enough proof". The verdict, especially in high profile cases, often causes controversy.

In February 1999, United States Senator Arlen Specter voted against conviction in the impeachment trial of Bill Clinton, citing the concept of the "not proven" as a basis for his decision. Another recent example is seen in the case of Sean Flynn, who stood trial at the High Court in Perth accused of murdering his mother, Louise Tiffney. Responding to the "not proven" verdict delivered on 16 March 2005, some of Flynn's relatives expressed their dissatisfaction, including Flynn's aunt, June Tiffney, who stated the verdict was "not justice" for her sister.

However, the Scottish legal profession is largely opposed to this perception of the not-proven verdict. In a Scottish criminal trial, the burden of proof lies on the prosecution, and the guilt of the accused must be proven "beyond reasonable doubt." It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a prosecution. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not-proven verdict, alerting the prosecution to the fact that its performance and/or evidence and/or witnesses were poor.

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Source : Wikipedia