Introduction to Law (an outline)

by John Bandler

This is an outline (with some factual nuggets) that I use to introduce law to non-lawyers. Some knowledge of law is important for everyone living in our country, which is a country of laws and process.

1. Introduction

Laws and our legal system are just types of rules for people and society.

Questions to get us thinking:

  1. How long have societies been creating rules and laws?
  2. What is law?
  3. What is the purpose of law?
  4. How would societies govern conduct of individuals without laws?
  5. How would we resolve disputes without laws?
  6. Why do we have lawyers?

There are two sayings to think about regarding the law and lawyers. Consider what they might mean, including alternate interpretations.

  1. "The law is a[n] ass - a idiot."  (See Charles Dickens' Oliver Twist, Mr. Bumble speaking).
  2. "The first thing we do, let's kill all the lawyers."  (See William Shakespeare's Henry VI, Part 2, Act IV, Scene 2).

2. What are laws?

Sources of law include:

  • US Constitution and state Constitutions
  • Statutes (legislation)
  • Common law (judge made law)'
  • US (federal) and states

The U.S. Constitution is the highest law in the United States. It establishes our system of government, with three branches of government (executive, legislative, judicial), and a system of checks and balances. It also limits the power of government, and guarantees certain rights to the people. There are amendments to the U.S. Constitution, including the Bill of Rights (Amendments 1-10). The First Amendment protects us from government restrictions on speech, religion and more. The Fourth Amendment protects us from unreasonable search and seizure by the government.

How is a law (statute) passed in the U.S.?

What is a regulation?

Bodies of law (areas of law) include:

  • Constitutional law
  • Criminal law
  • Civil law (a broad category that includes many of the below)
  • Tort law
    • Intentional torts
    • Negligence torts
  • Contract law
  • Property law
  • Cybersecurity Law
  • Privacy law
  • Regulatory law
  • Intellectual property law
  • Employment law
  • International law
  • Law of international conflict (warfare)
  • Maritime law
  • More

3. The U.S. Constitution, Bill of Rights, and other Amendments

The U.S. Constitution is our country's foundational law which establishes our system of government and many rights, and it deserves it's own section.

Government laws, regulations, and actions cannot conflict with the Constitution, since the Constitution is the highest law of the land. Of course, interpreting what is "constitutional" is an evolving concept and subject to change.

The first ten Amendments are known as the Bill of Rights. The First Amendment includes freedom of speech from excessive governmental restriction. The Fourth Amendment includes freedom from excessive governmental search and seizure.

More in my separate article on this.

4. Criminal law and procedure

Who investigates and prosecutes crimes?

  • State: State criminal statutes applied in a state court. A state/local prosecutor and usually by state and local law enforcement.
  • Federal: Federal criminal statutes applied in a criminal court. A federal prosecutor and usually federal law enforcement.

What is the difference between a state criminal prosecution and a federal criminal prosecution?

Every crime has “elements”. Those elements (almost always) include:

  1. Act (or sometimes an omission to act) – Actus Reus
  2. Culpable mental state – Mens rea
    • Intentionally
      • Intent vs Motive
    • Knowingly
    • Criminal negligence
    • Recklessly
  1. Other elements as laid out in the statute

Even if a person commits every element of a crime, they may be able to raise a defense, such as:

  • Justification (e.g. self defense)
  • Necessity
  • Entrapment
  • Duress
  • Mental disease/defect (insanity)
  • Renunciation

The criminal prosecution process

  • Parties: Gov't vs. individual (or entity)
  • Grand Jury
  • The prosecution process (litigation)
    • Arrest
    • Arraignment
    • Indictment (not always in this order)
    • Motions (see Fourth Amendment)
    • Hearing
    • Trial
    • Sentencing
    • Appeal
  • Burden of proof
  • Asset forfeiture (civil)

The Fourth Amendment protects us from unreasonable search and seizure by the government. Fourth Amendment law is a body of criminal constitutional law that restricts how the government can collect evidence, protecting rights of individuals. It includes:

  • Expectation of privacy from government intrusion (compare this concept with civil privacy, which is different)
  • Consent
  • Search warrant requirement
  • Exceptions to the search warrant requirement
  • Workplace searches and monitoring
  • Private searches vs public searches

The exclusionary rule means that if law enforcement collects evidence illegally or unlawfully, the evidence will be excluded (suppressed) and cannot be used at trial. This includes:

  • Physical evidence (Mapp)
  • Unlawful arrest (Dunaway, seizure of person)
  • Statements/confessions (Jackson-Denno/Huntley)
  • Identification of a defendant by a witness (Wade)
  • Fruit of the poisonous tree

5. Civil law and procedure

Civil causes of action

  • Intentional torts ("wrongs")
  • Negligent torts ("wrongs")
    • Elements: Duty to plaintiff, breach of that duty, proximate causation of damages
    • Premises liability – duty of landlord/property manager regarding crime
    • Cybersecurity/cybercrime
  • Breach of contract
    • Contract elements = offer and acceptance and consideration (and does not violate public interest/policy)
  • Cybercrime specific causes of action

The civil litigation process

  • Pre litigation
  • Complaint
  • Motion to dismiss
  • Answer to the complaint
  • Discovery
  • Summary judgment motion
  • Trial
  • Appeal

Note burdens of proof

Civil law: Licensing and regulation

  • Laws, regulations requiring certain conduct
  • Government as plaintiff
  • Licensing
  • Regulation (financial, AML, cybersecurity, health, consumer protection)

6. Other legal concepts

  • Burdens of proof (at trial and various other stages in a proceeding)
  • Standard of review (by a court)
  • Res judicata (the thing stands decided). This dispute, these facts are already decided.
  • Stare decisis (precedent, the legal authority of a decision, which contributes to "case law")
  • Evidence types
    • Direct vs circumstantial (which is “better”?)
    • Real
    • Demonstrative
  • Evidence admissibility
    • Relevant
    • Authenticated
    • Lack of undue prejudice
  • Hearsay rule: The law prefers live testimony, statements made in court, under oath, subject to cross examination, so the fact finder can assess credibility (jury or judge).
  • Exceptions to the hearsay rule include
    • business records exception
    • present sense impression
    • excited utterance
    • statement by a party opponent

7. Reading (“briefing”) a case

When reading a case decision (which was written by one or more judges), consider these things about the decision.

  • Identify caption/title of case (lists parties)
  • Identify the citation of case (how to cite it, find it)
  • Identify court issuing the opinion (trial court, appellate court, state or federal, location, etc.)
  • What type of case is it? (civil, criminal, regulatory)
  • Who are the parties? (Plaintiff, defendant, appellant, appellee, etc.)
  • What are the facts of the case? (e.g. what happened before the case got to court)
    • What facts are agreed upon. What facts are in dispute?
  • What is the prior procedure of the legal case? (How did the case start in the legal system, and where has it been to get to here)
  • Who wrote the main opinion, are there concurrences or dissents?
  • What issues and laws are being interpreted and decided? How are they decided?
  • What level of authority/precedent does this ruling carry? (Binding upon the U.S.? Upon a state? Highly or mildly persuasive? etc.)
  • Summarize the court’s holding (ruling on law) in one or two sentences.

8. Some of my favorite movie and TV clips relating to law are from:

9. Learning about law, finding cases and statutes

Unfortunately, statutes and cases can be difficult to read and understand, but it is worth trying. Some lawyers (including judges) probably could improve the clarity and simplicity of their writing.

A judge's decision in a case creates law (known as "case law", or perhaps "common law"), but also remember that every case is unique and of varying "precedent".

10. Conclusion

Of course, this is an outline with some talking points, and not a full article. See chapter 5 of my Cybercrime Investigations book for an in depth approach. And this is not legal advice nor tailored to your circumstances.

11. My articles on this site

This article is hosted at https://johnbandler.com/introduction-to-law-outline, copyright John Bandler, all rights reserved.

A version of this article is also available on Medium, at https://johnbandler.medium.com/introduction-to-law-outline-3a7e6171596e (though perhaps not kept as current, and not formatted as well).

Posted 2/1/2021. Updated 10/04/2022.