intro. to planning law#1

8/8/2019 Intro. to Planning Law#1

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University of Technology

Introduction to Law

Lecture # 1


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What is Law?

How Legal Systems AreOrganized?

The Components of

Interpreting the Law


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Law pervades our lives

Law is a body of rules enacted by public

officials in a legitimate manner and backed

by the force of the state. Law regulates the public and private

institutions that are a central part of our lives

Law is a word of many meaningsit is

difficult to define


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Law and Justice

Definitions of law do not necessarily include justice

Justice is fairness in treatment by the law.

The term justice is used many ways: justice is winning

justice is achieving desired results good v. badresults

justice is equated with normative values right toprivacy v. rights of the unborn


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Types of Law


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Civil Law

also called Roman law, Romano-Germaniclaw, or continental law

is the oldest family of law

starts with a codethe compilation of laws

the code expresses rules of law as general

principles

the code provides answers for all disputes


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Socialist Law

originated in the former Soviet Union

partly based on the civil system (a code)

but is also revolutionarylaw is to be usedto create a radically different society

based on the philosophy of Karl Marx and

Vladimir Leninthe societal ownership ofthe major means of production is a guidingprinciple


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rejects law as the fundamental basis for

societylaw is the arbitrary work of an

autocratic sovereign

the primary goal is the protection of the

stateprivate property receives less protection

law has an educational roleit is aninstrument of educating members about the

new Socialist society


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Islamic Law

most legal systems of the world are secularbut not all

Islamic law is termed thesharia

based on the Quran, which sets out principlesrevealed by God

and the Sunna which contains the practices

and decisions of Muhammad

Islam and Islamic clerics influence the law


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Common Law

traces its roots to medieval England

after the Norman conquest (1066) the Kings

courts began to apply the common customs ofthe entire realm rather than one village

common law came to be viewed as general

law as opposed to special lawit was the lawcommon to the entire land


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Equity

the common law became technical andevolved into a hard and limited law

common law remedies were largely limited tomonetary damages

the refusal of judges to adapt gave rise toequity law

equity meant fair dealing and equitableremedies were more flexible (e.g., injunctions)


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colonists brought principles of British commonlaw

they brought procedures but did not always apply

the substance law was adapted to the new society

by the nineteenth century most states had merged

their separate courts of law and equity today the term common law refers to the case

method


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Key Characteristics of Common Law

Judge-Made Law

Precedent

Uncodified Rules and Regulations


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Judge Made Law

until the late 19th century, there was no importantbody of statutory law in the U.S.

common-law courts developed rights in the area

of property, torts, wills and contracts, and theydefined such felonies as murder, manslaughter,arson, robbery, larceny and rape

common laws most distinctive feature is thedevelopment of a system of law from judicialdecisions


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Precedent

court decision that serves as authority for decidinga similar question of law in a later case

also referred to as stare decisis let the decision

stand

sometimes statements in a case are notinterpreted as precedentobiter dicta(dictum

or dicta) the part of the reasoning in a judicialopinion that is unnecessary to resolve the caseisnot considered precedent


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reliance on precedent is central to the common

law approach

provides stability, coherence, andpredictability

Stare decisis is usually wise policy, because

in most matters it is more important that theapplicable rule of law be settled than that it be

settled right. Justice Louis Brandeis


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Uncodified Rules & Regulations

there is no one place to look for a statement ofthe law

the law emerges through precedent found in court

decisions

common-law judges and lawyers reason byanalogy which allows leeway in formulating new

legal rules or modifying old ones, becauseanalogies are neither correct nor incorrect, onlymore or less persuasive


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judges may distinguish a current case

from previous ones

judges may find that a case differs fromall previous cases or that a previous case

was wrongly decided


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Adversary System

the common-law is adversarial, civil law isinquisitorial

the parties are responsible for callingwitnesses and asking questions

a judge acts as a neutral decision makerpresiding over a battle between the opposingparties

the best system for finding the truth?


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Party Prosecution

it is the responsibility of the parties, not the judgeor jury, to define the legal issues

encourages each party to present its best case

Neutral and Passive Decision Maker

the judge is a neutral arbitrator and expected to bepassive

must be free from pressure--independent


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Federalism

federalism divides power between thenational and state state governments

federal law refers to the law of the national

governmentapplies across the nation state law applies to citizens within its

territoryit is extensive and diverse (e.g.,business and marriage law)

local law applies to a limited geographic orfunctional areastates grant local

jurisdictions legal powers


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Multiple Sources of Law

federal, state and local laws arefound in multiple sources

Constitutions constitutions are the top rung

a constitution is the document that establishes theunderlying principles and general laws of a nation orstate

define the powers of branches of government

limit the powers of government (e.g., Bill of Rights)


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Constitutions specify how government officials will be selected

federal and state constitutions vary (e.g., selection ofjudges)

Statutes statutes are laws enacted by federal, state or local

jurisdictions

until late 19th century statutes were secondary to courtdecisions

today legislatively enacted law is extensive andcommon


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Administrative Regulations rules and regulations adopted by administrative

agencies that have the force of law

e.g., IRS decisions, nursing home standards, zoningregulations

newest and fastest growing source of law

administrative law concerns the duties and proper

running of an administrative agency


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Judicial Decisions

appellate court decisions are animportant source of law

legislatures pass law wholesale courts

make it retail (Friedman 1984) U.S. law today is primarily statutory

and administrativebut some areas(e.g., tort law and court procedures)

are dominated by judge-made law case law is important in determining

the meaning of other sources of law


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Public & Private Laws

Public law directly involves government(e.g., constitutional, criminal,administrative and international law)

Private law governs the relationshipsbetween private citizens

Tort law involves the legal wrong done to another person

not really privateit relies heavily on the actions of publicagencies

e.g., divorce lawgoverns private relationships butinvolves court decisions


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Civil & Criminal Law

a civil suit involves a dispute betweenprivate parties

a criminal suit involves a violation of agovernments penal laws

difference between who has beenharmed (individual v. state)

types of remedies differ (compensationv. prison, fines or probation)


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there are different types of criminalviolations

a felony is a more serious criminal offensethat involves a possible prison sentence of

one year or more

a misdemeanor is a less serious crime thatusually involves a possible prison sentenceof less than one year

criminal and civil law can sometimesoverlap (e.g., a drunk driver who killssomeone)


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Substantive & Procedural Law

substantive law defines legal rightsthe law defines the legal relationshipbetween the citizen and the state, andamong citizens themselves (e.g.,

contracts, property, torts, will criminallaw)

procedural law establishes the methodsof enforcing legal rights governs the conduct of cases in court

protects against arbitrary government actions

the central idea is due process of law


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Remedies

judgment a courts official decisionabout the rights and claims of eachside in a lawsuit

remedy the relief granted by thecourt, remedies include: declaratory judgments a judicial determination of the

legal rights of the parties

restitution the return of goods a party is entitled to


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the most common remedy is monetary damages

Compensatory damages payments for the actualharm suffered (e.g., medical bills, lost income, painand suffering)

Punitive damages monies awarded to a person whohas been harmed in a particularly malicious or willfulway (I.e., not related to the harm done and meantpunish the responsible party)

under equity law litigants seek an injunction a courtorder that requires a person to take and action or refrainfrom taking action


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Doctrines of Access

used to control the flow of cases intothe judiciary the court must have jurisdiction the power of a court

to hear a case in question

controversy must be a real disputenot hypothetical

plaintiff must have standing to sue

are judicially created and can bechanged or waived for a particularcaseespecially in policy lawsuits


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Interpreting the Law

citizens typically misunderstand the howjudges and lawyers interpret and apply the law

the law is not a series of precisely written andreadily located rules that cover situations

lawyers and judges must make sense out ofthe words found in constitutions, statutes,administrative regulations, and previous courtdecisions

some areas of law are relatively settled andothers are notcreating discretionary choices


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discretionary choices lead tointerpretationjudges and lawyersmust make choices

meaning of the words legislatures and judges use vaguelanguage that leaves considerable room for interpretation

conflicting laws it is not uncommon to find one lawconflicting with another (e.g., allowing free exercise ofreligion may appear to be the establishment of that religion

by the state)

gaps in the law despite all of our law, situations do arisethat are not contemplated, the discretionary choices courtsmake about these matters are important


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U.S. law is complex, fragmented andvoluminous

Our common-law traditions are unique anddiffer considerably from civil-law traditions

Our legal system is adversarial

Juries play a more important role than inmost legal systems

The Supreme Court decides some of themost pressing social and political issues ofthe day


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Planning, in the widest meaning of that word is

constantly on debate in our society. Demands

for planning are increasing and so are the

demnads for quality in the planning process.


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Planning & Land Use Law

After all, a policeman must know the

Constitution, then why not a planner? San

Diego Gas & Electric v. City of San Diego, 450

U.S. 621, 661 n.26 (1981) (Brennan, J.,dissenting


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Legal Foundations of Planning &

Zoning

United States Constitution

State Constitutions

State Statutes

Case Law - Federal and State


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Police Power

Sovereign power of the state to regulate andcontrol private behavior in order to protectand promote greater public welfare

Protection of health, safety, morals,convenience, and general welfare

Police power must be delegated by state tocounties and municipalities


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Substantive Due Process

Legitimate Governmental Purpose

Protection of health, safety, welfare, morals,

property values, quiet enjoyment, etc.

Rational Relationship A conceivable,

believable, reasonable relationship


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Critical Constitutional Concepts

Equal Protection - Treating those that are

similarly situated the same, or making

distinctions only on legitimate grounds

Distinctions based on fundamental right or

protected class status are unconstitutional

(see, e.g., Moore v. City of East Cleveland)


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Presumption of Validity

Legislative actions are presumed valid and

constitutional, and the burden is on the

person challenging the action to prove

otherwise.


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Validity of Zoning

Village of Euclid v. Ambler Realty, 272 U.S. 365

(1926) (holding that the mere enactment and

threatened enforcement of a general zoning

ordinance that creates various geographicdistricts and excludes certain uses from such

districts is a valid exercise of the police power

and does not violate due process or equalprotection provisions of U.S. Constitution)


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Eminent Domain

Berman v. Parker, 348 U.S. 26 (1954)

Concept of public welfare is broad and

inclusive, includes spiritual values as well asphysical, and aesthetic values as well asmonetary. Once question of public purpose

is settled, legislature has discretion to take all

parcels needed to avoid piecemealapproach to implementing redevelopmentplan.


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Susette Kelo v. City of New London, 125 S.Ct.2655 (2005).

Citys exercise of eminent domain power in

furtherance of economic development plansatisfies the public purpose interpretation of

the public use requirement of the TakingsClause of the Fifth Amendment even though

city does not intend to open land for use bygeneral public. Affirms Berman v. Parker


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