Class Three: Introduction to Law

Reading for Tuesday's Class • September 4, 2012

WHAT IS LAW?

What defines law?  What distinguishes moral obligation or ethical obligation from a legal obligation?  

When does my duty to keep a clean yard pass from being a personal desire, to a moral or ethical obligation, to a duty that can be enforced by the state?

For purposes of this class, a law is defined as an obligation or prohibition that can be enforced by the power of the state.  

The obligation can take the form of a Prohibition (You cannot travel faster than 25 miles an hour) or in the form of a Duty (You shall file your Income Tax Report).  The power of the state, ultimately, relies upon the legal use of force, giving rise to the maxim - “Behind every law there is a gun.”

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KINDS OF LAW

When we discuss a law - any law - it is important that we know what kind of law we discuss.  Often the kind of law at issue will determine how the question is answered, and affect our method of resolving the issue.  Relevant to this class, the character (or kind) of law is determined by two factors: (1) The Character; (2) The Source; and in certain cases an additional description - (3) The Level.

CHARACTER OF LAW

 There are five “characters” of law:

1. Constitutional - the Founding Document of the political regime.  A constitution sets up three broad areas (1) The Structure of Government; (2) The Powers granted to the Government; (3) The Powers denied to the Government.

2. Treaties - Treaties are agreements (often enforceable) entered into between sovereigns.

3. Statutes - In general, when the Legislature passes a bill, the bill becomes a law, and that law is called a Statute.  Laws passed by the Colorado Legislature are called, Colorado Revised Statutes.  Federal laws passed by Congress are also called Statutes, and also United States Code.

4. Regulations - In carrying out its obligation under the law, the Executive is often, if not always, required to establish rules that flesh out, give substance to, and accomplish the intent of the law.  These rules are called Regulations.

5. Case Law - When courts determine how to resolve a particular dispute, or what an ambiguous word in the statute means, that ruling will be relied upon in the future courts.  

SOURCES OF LAW

Law must come from somewhere - some government entity must create it.  For purposes of our class, there are three sources of law  - Federal, State or Local (County or City).    

LEVELS OF (CASE) LAW 

When dealing with case law, it is relevant to know from what level of court established the case law you cite.  For our purposes, from highest to lowest, there are three: (1) Supreme Court; (2) Court of Appeals; and (3) Trial Court.

BRINGING IT TOGETHER

Throughout class I may ask you - what kind of law is it?  Federal Statute?  State Supreme Court Case Law?  State Regulation?  City Statute?  The answer to that question will often determine how we resolve the issue before you.  If we are dealing with case law, I would want to know if the case law you cite is Federal Court of Appeals Decision, or a State Supreme Court Decision, or a Trial Court Decision.

PRECEDENT

“Precedent” is defined as an earlier event or action that is used as a guide in dealing with a future similar situation.  In the legal setting the term means the rule established in a prior case that may - or must - be followed by courts when dealing with a later similar situation.  Another word is called “authority.”  Precedent can either be “binding” or “persuasive.”

Precedent can be binding if the prior decision is from a directly higher court.  In the Federal Court setting, a Federal Court Trial Judge in Colorado must follow a decision established in the Court of Appeals for the 10th Circuit because Colorado is in the 10th Circuit.  Similarly, a decision in by the United Supreme Court is binding on all Courts of Appeals and Federal Court Judges throughout the nation.

However if that same Federal Court Judge is given a decision by the 9th Circuit of the Court of Appeals, the rule established by such a decision is merely “persuasive,” meaning that the Judge is free to adopt, or disregard, the rule established in the decision.  Decisions by other Judges, even in the same Circuit, are merely persuasive.

When a Judge fails to respect binding precedent, it is grounds for reversal upon appeal.  

How the Law Evolves

We need courts and case law in order to permit laws written years ago to be applied to situations today.  While we would like to think that laws can be drafted carefully to cover all possible future scenarios, the reality is different.  It is simply impossible for a legislature to anticipate all the myriad of variations that may occur that touch upon the law.  Further, legislatures often use imprecise words that may have subtle but different meanings, and those competing interpretations must be reconciled by the courts.

When courts are faced with a new situation that the current rule does not readily solve, they must modify the rule, and explain in writing why the modification is necessary.  Then that modification becomes part of the rule that later courts will apply to future situations.  Part of Legal Research is to determine what changes have occurred to the rule in a case you have found that supports (or challenges) your position.

Assignment One

Due Monday, September 3, 2012 by 11:59PM.

(Papers received late will be reduced ten percent of each 15 minute segment they are late)

Review the paper you emailed for passive voice and where appropriate, change the phrasing to active voice.  Please BOLD the sentences you change.  When submitting your assignment back to me please title it:

Baseline V.2. (Your Name).docx

As always be sure to put "ID420" in the subject line.

Thank you!

Class Two: Writing - Eliminate Passive Voice

Writing Step One: Eliminate Passive Voice or....Passive Voice was ruthlessly eliminated.

The number one best tip to make your writing direct and fresh is to ruthlessly eliminate phrases written in the passive voice with few exceptions.  Those exceptions should be deliberate and justifiable.  

Passive Voice occurs in a sentence when the emphasis of the sentence is upon the recipient of the action - rather than the actor.  The easiest way to locate and remove passive voice is to search for “to be” verbs such as: are; is; have been; were; and was.  Anytime those word precede another verb - you are looking at passive voice.  Remove those words and you have an active sentence.

EXAMPLE:

Jim was shot by Bob. (Passive Voice) 

CHANGE TO

Bob shot Jim.  (Active Voice)

There are three reasons to use passive:

1. When it is more important to draw our attention away from the actor and to the person or thing acted upon.  This may because we do not the identity of the actor, or wish not put the focus there.  The phrase “mistakes were made” is now legion in politics.  On January 27, 1987, U.S. President Ronald Reagan used the phrase in the State of the Union Address while discussing contacts with Iran in what came to be known as the arms-for-hostages scandal within the Iran-Contra affair. He said, in part: “And certainly it was not wrong to try to secure freedom for our citizens held in barbaric captivity. But we did not achieve what we wished, and serious mistakes were made in trying to do so. We will get to the bottom of this, and I will take whatever action is called for.”
2. When the actor in the situation is not important: The meteor shower can be observed after two a.m..
3. Writing in scientific or technical writing or lab reports, where the process or principle is the main point of the writing.  
4. In other words, use passive voice rarely and deliberately.

PROOF READING PRACTICE:

Rewrite the following sentences and paragraphs by eliminating passive voice.  Be prepared to go over this in class:

1. The tall woman in her thirties was immediately visible to him.   She was standing to the side with her older brother Steven.   She was saying goodbye. 

EXAMPLE REWRITE:  He immediately saw a woman in her thirties saying goodbye to her older brother Steven standing next to her.

• Things outside the Valley were getting worse, not better.  The Federal Government had cancelled most air travel and imposed quarantine measures at the ports.  Merchant Marine vessels were anchored off shore for at least two weeks to ensure they are Influenza Free.

EXAMPLE REWRITE:  Things outside the valley were worse, not better.  The Federal Government cancelled most air travel and imposed quarantine measures at the ports.  Merchant Marine vessels anchored off shore for two weeks to ensure they were influenza free.

• As they descended, sweaters and coats were stowed away.

• Monica and Michael got out of the jeep that Sheriff Dove was driving to look inside.  

Class One: Introduction to Argument

Introduction to Arguments

An argument is a conclusion derived from applying adopted rules to determined facts relevant to resolve a specific issue in order to accomplish a goal.  

There are a number of components to this definition:

1. Your Goal in making the argument

2. The issue at hand

3.  Your Adopted Rules

4.  Your Determined Facts

5. Your End-Point-Conclusion

Arguments can be mind numbingly layered, because each of the above components is itself a Conclusion that rests upon other determined facts and adopted rules.  

For example: 

I assert that If you drink the contents of this bottle - you will die.  This is my conclusion.

This Bottle contains Bleach.  - This is an determined fact.

Bleach is a poison - This is a determined fact.

Drinking Poison can kill you - This is an adopted rule.

The Determined Fact that “This Bottle contains Bleach” is also a conclusion. How do I know the bottle contains bleach?  What facts do I rely upon to determine that it does, in fact, contain bleach?  The Label? The smell? Someone’s say so?  

The Adopted Rule that “Drinking Poison can kill you” is also a conclusion.  How do we know this?  What testing was done to determine this?  

Finally the determined fact that “Bleach is a Poison” is itself a conclusion.  It relies upon a factual premise that bleach causes the death of people who drink it.

Obviously in the vast majority of arguments you will never distill each and every determined fact and adopted rule down to their core.  Nonetheless it is critical for you to understand that each end-point-conclusion rests upon other supporting conclusions about the facts or the rules.  Successfully challenging arguments requires that you identify those supporting conclusions Challenging arguments is the task of identifying those supporting-conclusions of facts or rules which are vulnerable to attack.

Building Blocks of an Argument

Every argument, decision, dispute, or declaration can be reduced to the following equation:

C = I (F/M X R/M)

In the above equation:

C = End-Point-Conclusion.

I = The Issue the argument should resolve

F = Determined Facts

R = Adopted Rule

M = Methodology used to Determine the Facts or Adopt the Rule

There may be a lot of extra words that add flourish and frill to an argument, but in the end every house, from the Hut to the White House is made up of the same elements - walls, floors, doors, and roof.  The rest is ornament that may add or detract from how well you convey these premises and conclusion to your audience.

Because End-Point-Conclusions are the logical (one hopes) results of two or more premises, you should understand that premises make up the vast bulk of any argument.  Because a conclusion is dependent upon the premise, your best bet for articulating, defending, or attacking any argument is to fanatically focus on the disclosed facts and rules as well as force out the hidden unarticulated facts or rules that must necessarily exist to support the end-point conclusion.

Finally, understand that arguments is an undertaking to accomplishing a goal. You want someone to believe something, do something, consider something, or merely understand something.  Often your goal will determine the structure and tone of your argument.

ID 420 Legal Research & Writing Fall 2012 Class Syllabus

ID 420 Legal Research & Writing (3 Credits)

Fall 2012 Course Syllabus

Successful completion of this class will provide you with working practical experience in legal advocacy writing. The focus of the course will center on THREE major themes:

·       Argument & Rhetoric – I will teach you the major components of an argument and be able to apply that knowledge to creating, deconstructing, defending or attacking an argument.

·       Legal Research & Authority – I will teach you the components, sources, branches, and types of legal authority – what is blandly labeled as “the law.”  I will also teach you how to find the law and how different legal sources interact with each other.

·       Writing – I will teach you several easy steps you can take immediately to improve your writing.  I will teach you proof reading, style, and structure of good writing.

Instructor & Office Hours

Britton Morrell, Esq. KAPLAN MORRELL 1305 8th Street Greeley, Colorado 80631 T:      (970) 356-9898 F:      (970) 356-9899 E:      lawprof@me.com  Office Hours are as follows: Wednesdays 3:00 PM to 7:00 PM Thursdays 8:00 AM to 11:00 AM Mondays and Wednesdays for the hour prior to class

I have practiced law for over 17 years representing workers in employment law matters.  I am licensed to practice law in Colorado District Court, United States Federal Court, and the Office of Administrative Courts. YOU MUST CALL AND MAKE AN APPOINTMENT FIRST DUE TO MY SCHEDULE.  IF YOU SHOW UP UNANNOUNCED YOU MAY NOT BE SEEN. You may also email me as needed.

 

Text

There is no commercial textbook for this class.  I will provide you with handouts via email for a nominal charge ($10.00).  All funds raised will be used to purchase pizza or other dinner for class during review sessions throughout the class.  All assignments will received by email. Toward that end IT IS CRITICAL THAT YOU EMAIL ME AT LAWPROF@ME.COM AND PUT “ID420” IN YOUR SUBJECT LINE SO THAT I CAN FIND YOUR WORK I hope I have made this clear enough.

Grading & Attendance

Grading will be done on a modified curve.  The highest grade in the class will establish the top level of A.  The next 10% of students within ten percent of that score will also receive an A.  All students 11% to 20% below that score will receive a B, and so on.

Class Participation                                30%

Final Writing Sample & Exam                 35%     

April Writing Sample & Exam                 20%

March Writing Sample & Exam              10%

February Writing Sample & Exam          5%

Grading (other than Class Participation) will be done anonymously. 

Class Participation will be graded ONLY when your name is pulled and you are required to participate that class.  You are permitted ONE “Pass” per cycle.  If you are called upon and not present, it will count as your first “Pass.”  Inability to participate in a cogent, intelligent and informed manner for whatever reason will be counted as a Zero for the cycle.  Participation that reveals lack of reading will be given partial credit.  You will be called upon at least THREE cycles during semesters.  In addition I will give out various easy little assignments on a random basis that will affect your participation grade.  Finally I will occasionally provide “magic words” that will result in extra points when used in the next exam whenever I see class attendance on the wane.

Statement as to Accommodation

The University of Northern Colorado and I will make every effort to reasonably accommodate disabilities.  If you have any concerns or requests - please contact me or the Department Head.

What to Expect

You should expect to write a two to three page paper and proof read a paper each week

I will endeavor mightily to make the lecture substantively different than what you have read.  STUDENTS WHO DO NOT COME TO CLASS WILL HAVE SERIOUS PROBLEMS OBTAINING A GOOD EXAM SCORE.   If you are called upon you will be expected to have comments and answers that reflect that you have at least TRIED to read the material.  Questions that show you have read, but are having difficulty understanding the legal jargon are acceptable.

Exams will be a mix of essay and multiple choice.  Exams will (naturally) cover material in class and in the readings.

THIS IS NOT A CLASS TO TAKE IF YOU CANNOT MAKE IT REGULARLY TO CLASS.  IN LAW SCHOOL LEGAL RESEARCH & WRITING IS A YEAR LONG CLASS – WE WILL MOVE QUICKLY.