Introduction to Law (an outline) by John Bandler
This is an outline (with some factual nuggets) that I use to teach non-lawyers basic principles of law. I use this for various courses at the undergraduate and graduate level, and as an outline for speaking engagements. I have posted it online so that it is available for anyone to get a brief overview of law.
For more detail, see Chapter 5, “Fundamental Principles of Criminal and Civil Law” in my book, “Cybercrime Investigations: A Comprehensive Resource for Everyone”. We included a chapter on the topic because civil and criminal law is of high importance for cybercrime, cybersecurity, and privacy.
There are two sayings to think about regarding the law and lawyers. Consider what they might mean, including alternate interpretations.
- "The law is a[n] ass - a idiot." (See Charles Dickens' Oliver Twist, Mr. Bumble speaking).
- "The first thing we do, let's kill all the lawyers." (See William Shakespeare's Henry VI, Part 2, Act IV, Scene 2).
Consider why we have laws and rules. How would we resolve disputes otherwise?
Consider why we have lawyers.
When did societies start creating rules to govern conduct of individuals and groups?
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. Consider:
- 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 warfare
- Maritime law
2. Criminal law
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:
- Act (or sometimes an omission to act) – Actus Reus
- Culpable mental state – Mens rea
- Intent vs Motive
- Criminal negligence
- 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)
- Mental disease/defect (insanity)
The criminal prosecution process
- Parties: Gov't vs. individual (or entity)
- Grand Jury
- The prosecution process (litigation)
- Indictment (not always in this order)
- Motions (see Fourth Amendment)
- 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
- 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
3. 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
- 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
- Motion to dismiss
- Answer to the complaint
- Summary judgment motion
Note burdens of proof
Civil law: Licensing and regulation
- Laws, regulations requiring certain conduct
- Government as plaintiff
- Regulation (financial, AML, cybersecurity, health, consumer protection)
4. 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”?)
- Evidence admissibility
- Lack of undue prejudice
- Hearsay rule: The law prefers live testimony, statements made in court, under oath, and subject to cross examination.
- Exceptions to the hearsay rule include
- business records exception
- present sense impression
- excited utterance
- statement by a party opponent
5. Reading (“briefing”) a case
- Caption/title of case (lists parties)
- Citation of case
- Identify court issuing the opinion (trial court, appellate court, location, state or federal)
- 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 in dispute?
- What is the prior procedure of the legal case? (where has this case been in legal system)
- What laws are being interpreted?
- What is the court’s holding/ruling? (issues, reasoning, concurrence, dissent)
- What level of authority/precedent does this ruling carry? (Binding, persuasive, etc.)
- How would you summarize the case holding in one or two sentences?
6. Finding cases and statutes
- Course book
- Google Scholar https://scholar.google.com/
- Government sites
- Other free (reputable) online resources
- Paid legal services/databases
Unfortunately, statutes and cases can be difficult to read and understand. But you should try to read them. Some lawyers probably should 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".
7. Some of my favorite movie clips relating to law are from:
- The Paper Chase
- My Cousin Vinny
- The Wire
- Breaking Bad
Of course, this is an outline with some talking points, and not a full article. See chapter 5 of my book for an in depth approach. This is not legal advice nor tailored to your circumstances. I have written other short articles on law, which are listed below:
- Policies, Procedures, and Governance of an Organization
- New York Cybersecurity Requirements and the SHIELD Act
- About the CIPP/US Certification and How to Study for It (a privacy certification that requires considerable knowledge of law)
- Virtual Currency (including digital currency, cryptocurrency, virtual assets, and "value that substitutes for currency")
- Free Speech, the First Amendment, and Social Media
- Cybercrime Investigations, Chapter 5, Fundamental Principles of Criminal and Civil Law
- Cybersecurity Laws and Regulations Part 1 (general legal overview)
- Cybersecurity Laws and Regulations Part 2 (listing and brief summary of some laws and regulations)
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 8/18/2021.