2Legal Systems of the World The are four legal systems that govern most of the world’s population:Romano-Germanic (Civil Law)Islamic (Muslim Religious Law)Socialist LawCommon Law
3The Common LawAlthough settled by Germanic tribes and later conquered by the Romans, England has a legal system different from the Romano-Germanic system common to most of Europe.England’s system of “common law” was brought to America by the original colonists.Officially King Alfred the Great ( AD) is credited with establishing the system of common law. Alfred’s book of laws (aka “Dooms”) was a blend of Mosaic Code, old Germanic customs and Christian principles.. The set of his laws, however, was not meant to be complete. Local lords still maintained their own court systems (“shire” courts) within which local laws and customs were enforced.Note the language similarities with “The Lord of the Rings”.Laws were referred to as “Dooms” because the most common penalty was “death”. There weren’t a lot of modern refinements in punishment.
4William the Conqueror’s reign ( AD) brought refinements to the common law by establishing a strong national government. To consolidate his rule, William created a court system to administer the “King’s Law”, a law common to all England. These courts ultimately became known as the “Courts of Common Pleas”.He commissioned a Doomsday Book (1085AD) in which the established customs on which the common law was to be based were laid out. These “established customs were identified during the first census of England (although historians believe these customs reflected rules congenial with the preferences of the King).
5PrecedentPerhaps the most distinguishing feature of Common Law is the use of precedent. Once a court faced a given set of facts and interpreted the law, its new decision became law and would be followed under similar circumstances in future cases.Custom becomes law when recognized by the courts. It was originally considered to be unwritten law. Today most of the common law is recorded and formalized by legislative enactment but the process of making law in novel situation remains. Changes in existing laws under this prlnciple are usually to be left to the legislature.
6PrecedentUnder this’ doctrine of judicial decision making, the court will not change the interpretation of the law once established unless the previous decision can be shown to be in error.The task of the court in the cases that follow is to determine if the previous decisions were the right ones.
7Precedent Precedent Precedent is a “Work-Saving” Principle. Work out the answer once.UNTIL someone shows you that you are wrong, or that there is an even better solution to a problem, stick with your original answer every time the same problem arises.
8PrecedentIn Bureaucracies, acting on precedents is the rule of the day. Except most bureaucracies call them SOPs, i.e. “standard operating procedures”.The stated logic of most government bureaucrats is simple and often infuriating. If you ask “Why?”, they answer “Because”. Implied is the followup “we always do it this way.”
9PrecedentPerhaps the one advantage of the use of precedent in a legal system is that the rationale is a little less obscure.When judges are asked “Why?”, they can answer “Because” just like any other bureaucrat. But they usually offer the further answer “Because US vs. X is a precedent and in that decision we explain why this case is decided as it is.”
10PrecedentIn our legal system, the following of precedent in “similar” cases is called the doctrine of “stare decisis”. (“Let the prior decision stand.”)Questions:Does the use of precedent promote justice?Could the use of precedent cause injustice?
11Precedent (Karl Llewellyn – The Bramble Bush) Using precedents is not as easy as it seems.ORTHODOX I STRICT VIEWNo Judge can decide a case that is not before him/her.“Distinguish” - ignore unfavorable precedentsLOOSE VIEWPrior decision is all inclusive“Capitalize” (incorporate) friendly precedents
12Precedent (Karl Llewellyn – The Bramble Bush) DistinguishTime 1 Case A establishes rule.Time 2 Case B with “similar” facts.Case A is ignored and a new rule announced.CapitalizeTime 1 Case A establishes rule.Time 2 Case B with “dissimilar” facts.Case A is embraced and it’s rule applied to this new situation.
13Precedent (Karl Llewellyn – The Bramble Bush) In any case precedents can be used by the attorneys strictly or loosely:“Your Honor, We believe State vs. Smith in which the Supreme Court decided that cars must stop for all cows crossing the road and are liable is they do not applies in this case where a chicken was brutally run down by the defendant.” (“capitalizing”)“Your Honor, State vs. Smith is not the controlling law here. That case applied to cows crossing roads. This case involves a bird. Suring the bird bears some responsibility for not flying across the road. A new legal principle is called for to decide this case.” (“distinguishing”)
14So what’s a judge to do? Precedents don’t always make the answer clear.
15The Evolution Of Family Law in North Carolina, 1837-1874 State v. Pendergrass (1837) J. Gaston(Criminal - Teacher/Student)Joyner v. Joyner (1862) C.J. Pearson(Civil - Divorce Hearing)State v. Black (1864) C.J. Pearson(Criminal - Domestic Assault)State v. Rhodes (1868) J. ReadeState v. Mabrey (1870) J. ReadeState v. Oliver (1874) J. Settle
16State v. Pendergrass (1837) Case History & Relevant Facts: This case is an appeal by the teacher from a lower court ruling.Teacher committed assault & battery with a switch and a blunter object.No permanent damage - marks disappeared within daysNo personal information about the teacher and student are offered other than gender and age of the student.
17State v. Pendergrass (1837) Ruling & Rationale: Ruling - For the teacher.The authority of the teacher is a delegation of parental authority.The teacher has the power for moderate correction of behavior.Power must be used with a purpose - without malice or personal gratification. No abuse of authority is permitted.Conclusion: if moderate punishment is used, its legality turns on the intention of the teacher.
18Joyner v. Joyner (1862) Case History & Relevant Facts: Divorce hearing - Appeal from a court order that alimony be paid during the suit.Husband struck wife with a horsewhip and a switch. She sustained no permanent injury, only bruises.
19Joyner v. Joyner (1862) Ruling & Rationale: Ruling - For the husband. Wife is subject to the husband’s authority. Why? First, because the Bible says so. Second, because the husband is legally liable for the wife’s behavior.Facts are inadequate. The Court cannot determine if the wife has grounds for divorce because it doesn’t know what action caused the husband’s reaction. The only known facts are that the wife is “well bred” and that the husband wasn’t drunk or unfaithful.
20State v. Black (1864) Case History & Relevant Facts: Public fight between husband and wife.The wife started the quarrel by accusing the husband of unfaithfulness. Husband threw her to the ground by her hair but did not strike her further.Appeal from a lower court decision against the husband.
21State v. Black (1864) Ruling & Rationale: Ruling - For the husband. Pendergrass and Joyner are cited as precedents.The wife’s attorney attempts to get the Court to “distinguish” this case from the others by arguing that the couple had “agreed to be separated” at the time of the incident and therefore the wife was no longer subject to the husband’s authority. The Court refuses to acknowledge the separation as relevant as the husband is still liable for his wife’s behavior.
22State v. Rhodes (1868) Case History & Relevant Facts: Appeal from criminal domestic assault & battery.Husband struck wife three times with a switch. (“The Rule of Thumb”) There was no provocation recognized by the Court (only “trifling words” that made no impression on bystanders.)
23State v. Rhodes (1868) Ruling & Rationale: Ruling - For the husband. This violence would be battery if the subject was not the accused wife.“Effect Produced” Standard - The Court should not enter “trifling” cases of family government. No permanent damage done to the wife.Case is distinguished from (a) St. V. Hussey -competency of wife as witness and (b) St. v. Black -battery w/ provocation.Court searches for common law of other times and in other countries for insight. This search yields some support for the wife’s position - that marriage is no defense against a criminal charge of battery. BUT... the Court ignores this search - on practical and policy grounds, family law is no business of the Court.
24State v. Mabrey (1870) Case History & Relevant Facts: Appeal by NC from a lower court ruing in favor of the husband.After an argument, the husband threatens to leave the wife. As she attempts to leave, he draws a knife and tries to stab her but misses. A second attempt is prevented by a neighbor.
25State v. Mabrey (1870) Ruling & Rationale: Ruling - Against the husband.Court will not become involved in domestic disputes. (Precedent - Rhodes)But marriage is not a protection against dangerous violence (committed or threatened.) In other words, J. Reade has upheld Rhodes by distinguishing it from the present case. He has, in essence, returned to the Pendergrass rule. But contrary to Rhodes, Reade says explicitly that “the effect produced” does not govern Court involvement.What the Court’s standard is remains unclear.(Apparently the Court has fallen into the trap of requiring judicial determination of the seriousness of each threat. The USSC has fallen into this same trap in judging pornography.)
26State v. Oliver (1874) Case History & Relevant Facts: Domestic assault and battery.Drunken husband who hit his wife 5 licks with a switch. Appeal from a lower court decision which found the Husband guilty and fined him $10.
27State v. Oliver (1874) Ruling & Rationale: Ruling - Against the husband.Use of violence is not permitted by law in NC.BUT the Court will not listen to trivial complaints.SO... No general rule can be applied and each case must depend on the circumstances. The circumstances here show malice and cruelty.
28SUMMARY OF THE COURT’S LOGIC State v. Pendergrass (1837)Moderate force is permitted IF IT IS PROPER.Joyner v. Joyner (1862)Moderate use of force is permitted IF IT MIGHT HAVE BEEN PROVOKED.(Pro-Husband if no evidence exists as to who started the fight.)State v. Black (1864)Moderate use of force is permitted IF PROVOKED. (Pro-Husband if the wife started the fight)
29SUMMARY OF THE COURT’S LOGIC State v. Rhodes (1868)Moderate use of force is permitted IN ALL FAMILY MATTERS. (Pro-Husband if the husband started the fight.)State v. Mabrey (1870)Immoderate use of force is not permitted.State v. Oliver (1974)No General Rule Is Possible. (A return to the 1st paragraph in Pendergrass.) But.. .the old doctrine that a husband has a right to whip his wife is not law in North Carolina.
31Why study this “history” of NC case law? Laws evolve through court-made decisions.Precedent (“stare decisis”) governs how cases are decided but this doesn’t mean change is impossibleUnder a “common law” system, it isn’t necessary for the legislature to write a law for all circumstances.Courts will apply rules to novel situations.Realistic – Legislatures can’t anticipate every situation.Court-made laws aren’t final. Rules can be changed by legislatures.Major shifts in court-made law are infrequent … but they do occur.
32Where did Roe come from? What is its impact as legal precedent? Modern PrecedentsWhere did Roe come from?What is its impact as legal precedent?
33Precedents for Roe v. Wade Griswold v. Connecticut (1965)Invalidated a CT law prohibiting the use of contraceptives.“right to privacy” in the “penubras” of the rights guaranteed by the Bill of RightsEisenstadt v. Baird (1972)Overturned conviction for sale of contraceptives to an unmarried person.“If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
34City of Akron v. Akron Center for Reproductive Health (1983) Justice Powell, for the Court:“These cases come to us a decade after we held in Roe v. Wade, that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman’s right to decide whether to terminate her pregnancy. Legislative responses to the Court’s decision have required us on several occasions, and again today, to define the limits of a State’s authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.1 We respect it today, and reaffirm Roe v Wade.”Roe v. Wade 410 U.S. 113 (1973)Akron v. Akron Center 462 U.S. 416 (1983)Quote at 462 U.S. 416 (1983), at 419(also with Planned Parenthood Assn. of Kansas City v. Ashcrofl and Simopoulos v. Virginia)
35The Footnote1 There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v Wade. That case was considered with special care. It was first argued during the 1971 Term, and reargued -- with extensive briefing -- the following Term. The decision was joined by THE CHIEF JUSTICE and six other Justices. Since Roe was decided in January 1973, the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy.A footnote for emphasis. The Justices know what they’re doing and they’re telling their publics that they know. “We’re being good judges and following a precedent that we worked hard to establish.”
36The Aftermath of Roe v Wade Degree of Participation in Abortion DecisionsDenied rights to the spouse of a married woman:Planned Parenthood v Danforth (1976)Bellotti v Baird (1979)Required parental consent for single minor:Planned Parenthood v Ashcroft (1983)Hodgson v Minnesota (1990)Ohio v Akron Center for Reproductive Health (1990)The history of Abortion law following Roe has been one of preserving the core holding while allowing state legislatures to limit its scope
37The Aftermath of Roe v Wade State and Federal Limits of Funding for AbortionBeal v. Doe (1977)No Federal requirement for states to perform abortions with Medicaid funds.Maher v. Roe (1977)States could restrict their own funding of abortionsHarris v McRae (1980)Federal Funds cannot be used for abortions (aka the Hyde Amendment)Webster v Reproductive Heath Services (1989)Restrictions on use of public facilities for non-therapeutic abortions
38The Aftermath of Roe v Wade Procedural RequirementsPoelker v. Doe(1977)Colauti v. Franklin (1979)Planned Parenthood v. Ashcroft (1983)City of Akron v Akron Center for Reproductive Health (1983)Poelker – Uphold St. Louis law prohibiting the use of municipal hospitals for non-therapeutic abortions.Colauti – Statutory language requiring physicians to “preserve life” is to vaguePlanned Parenthood – state may require a pathology report and a 2nd attending physician after viabilityAkron – there is no reasonable requirement for hospitalization after the 1st trimester.
392007 Changing Court, Changing Precedent? Banning the “Partial Birth” AbortionWill Roe v. Wade survive as a precedent?Will the court “save” it but distinguish every situation from it so as to make it irrelevant?Or, will the court OVERTURN Roe as a precedent and offer a new rule? (How strict or lenient might the new rule be?)