LMRQ 1
1. The common law is derived from judicial decisions rather than statutory authority (Morris, Cournoyer, and Marshall, 2008, p. 6). Statutory law, on the other hand, is law that is made through legislation (Morris, Cournoyer, and Marshall, 2008, p. 6).
2. Common law is built on legal precedents from case law (Morris, Cournoyer, and Marshall, 2008, p. 6). The legal precedent of a previous case helps to guide a judge in rendering a decision with similar legal issues and facts. Sometimes legal precedent becomes outdated and antiquated as the needs of society change. When precedent is inconsistent with the changing needs of society, a judge is not bound to follow the prior precedent and can decide the case differently (Morris, Cournoyer, and Marshall, 2008, p. 6). Thus, while precedent serves as an important guiding tool, a judge is not absolutely bound to follow precedent if doing so would frustrate the administration of justice.
3. Precedent provides a basis for a judge to decide future cases by referring to prior case precedent (Morris, Cournoyer, and Marshall, 2008, p. 6). Stare decisis is closely related matter to precedent. The underlying purpose of stare decisis is to provide consistency and uniformity in the law (Morris, Cournoyer, and Marshall, 2008, p. 6). Stare decisis enhances the stability of law in that judges are strongly encouraged to use precedent and treat matters that have similar legal issues and facts alike.
4. A judge is not bound to adhere to stare decisis if the prior judicial decision is no longer appropriate given the current legal or social climate. A judge can also deviate from precedent if the precedent is no longer appropriate or acceptable (Morris, Cournoyer, and Marshall, 2008, p. 7).
5. There are many novel questions of law that judges frequently encounter and must decide upon. When there is no previous precedent, the judge should exercise their best judgment to decide the after carefully considering the facts of the case, important social factors, and other cases that may not be directly on point but could serve as a helpful guide (Morris, Cournoyer, and Marshall, 2008, p. 7).
6. There are four basic and fundamental differences between criminal law and civil law. First, in civil law, a particularly individual was wronged (Morris, Cournoyer, and Marshall, 2008, p. 9). In contrast, in criminal law, the wrong is perpetrated against society as a whole (Morris, Cournoyer, and Marshall, 2008, p. 9). Second, the purpose of bringing a civil action is to seek compensation for harm suffered to the plaintiff (Morris, Cournoyer, and Marshall, 2008, p. 9). In criminal law, the purpose of bringing the case is to punish the person who committed the wrong (Morris, Cournoyer, and Marshall, 2008, p. 9). Third, in a civil case, the party bringing the lawsuit is the injured party (Morris, Cournoyer, and Marshall, 2008, p. 9). In a criminal case, the prosecutor brings the case against the defendant on the peoples’ behalf (Morris, Cournoyer, and Marshall, 2008, p. 9). Fourth, the plaintiff will hire and pay the attorney that represents him or her (Morris, Cournoyer, and Marshall, 2008, p. 9). In criminal law, the attorney bringing the case on the peoples’ behalf is paid by the government (Morris, Cournoyer, and Marshall, 2008, p.9 ).
7. A tort is when one person owes a legal duty to another and injures another (Morris, Cournoyer, and Marshall, 2008, p. 10). A tort differs from a crime in that in tort law, the person who owes the legal duty has not violated any criminal laws or statutes. Two examples of torts are negligence and fraud (Morris, Cournoyer, and Marshall, 2008, p. 10). Two examples of crimes are rape and assault (Morris, Cournoyer, and Marshall, 2008, p. 11).
8. Three types of compensatory damages that can be awarded to a plaintiff are past and future out-of-pocket expenses, pain and suffering, and loss of consortium (Morris, Cournoyer, and Marshall, 2008, pp. 10-11).
9. Three facts that a judge will consider when sentencing a defendant in a criminal case are the underlying facts of the case, the impact the crime has on the victim, and the circumstances and criminal record of the defendant (Morris, Cournoyer, and Marshall, 2008, p. 11). The judge will use each of these factors to determine whether to grant the defendant leniency in sentencing or to impose the maximum penalty under the law. The severity of the crime, whether there are aggravating factors, and a previous criminal record will all weigh heavily in favor of the judge imposing a harsher sentence.
10a. Juridiction is the authority of a court to hear a particular case (Morris, Cournoyer, and Marshall, 2008, p. 19).
b. A counterclaim is an answer where a defendant states any claims that the defendant may have against the plaintiff (Morris, Cournoyer, and Marshall, 2008, p. 23).
c. A motion is where a party requests certain relief from a judge while a lawsuit is pending (Morris, Cournoyer, and Marshall, 2008, p. 22).
d. An appellate court is a court that hears cases on appeal (Morris, Cournoyer, and Marshall, 2008, p. 30).
e. Discovery is the pretrial process where each party has the opportunity to obtain evidence known to the opposing party (Morris, Cournoyer, and Marshall, 2008, p. 25).
f. A hung jury is where the jury cannot obtain the needed number of votes to reach an agreement regarding a verdict (Morris, Cournoyer, and Marshall, 2008, p. 29). If the jury is hung, the case may be retried and the attorney can request a new trial on grounds that the judge made an erroneous ruling during the course of the trial, the jury instructions were improper, or the jury improperly heard a prejudicial statement that affected the outcome of the case (Morris, Cournoyer, and Marshall, 2008, p. 30).
References
Morris, K.L., Cournoyer, N.G. and Marshall, A.G. (2008). Introduction to Contemporary
Hospitality Law. Clifton Park, NY: Cengage Learning.
Morris, K.L., Cournoyer, N.G. and Marshall, A.G. (2008). Legal Procedures: Journey of
a Case through the Courts. Clifton Park, NY: Cengage Learning.
