This is an outline (with some factual nuggets) and not really an article. I use this to teach non-lawyers basic principles of law, within various courses at the undergraduate and graduate level. I thought it would be helpful for students and others to have online.
For more detail, see Chapter 5, “Fundamental Principles of Criminal and Civil Law” in my book, “Cybercrime Investigations: A Comprehensive Resource for Everyone”.
There are two sayings to think about regarding the law and lawyers.
Consider what they might mean, including alternate interpretations.
1. The law is an ass.
2. The first thing we do, let’s kill all the lawyers.
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?
What is a “law”?
How is a law passed in the U.S.?
What is a regulation?
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.
Bodies of law to consider
· Constitutional law
· Criminal law
· Civil law (a broad category that includes many of the below)
· Contract law
· Intellectual property law
· International law
· Law of warfare
· Maritime law
· Privacy 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:
1. Act (or sometimes an omission to act) — Actus Reus
2. Culpable mental state — Mens rea
· Intentionally (Intent <> Motive)
· Criminal negligence
3. Other elements
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)
o Indictment (not always in this order)
o 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:
o Physical evidence (Mapp)
o Unlawful arrest (Dunaway, seizure of person)
o Statements/confessions (Jackson-Denno/Huntley)
o Identification of a defendant by a witness (Wade)
o Fruit of the poisonous tree
3. Civil law and procedure
Civil causes of action
· Intentional torts
· Negligent torts
o Duty to plaintiff, breach of that duty, proximate causation of damages
o Premises liability — duty of landlord/property manager regarding crime
· Breach of contract
o Contract = offer and acceptance and consideration
· 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)
· Stare decisis (precedent, the legal authority of a decision)
· Evidence types
o Direct vs circumstantial (which is “better”?)
· Evidence admissibility
o 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
o business records exception
o present sense impression
o excited utterance
o 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)
o 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
· Google Scholar https://scholar.google.com/
· Government sites
· Other free (reputable) online resources
· Paid legal services/databases
Of course, this is just an outline, not an article, and it is not legal advice nor tailored to your circumstances. I have written short articles on more discreet areas of law, and you can find them on Medium or my website.
Again. these concepts are explained well (and in full sentences) in Chapter 5, “Fundamental Principles of Criminal and Civil Law” in my book, “Cybercrime Investigations: A Comprehensive Resource for Everyone”.
A version of this article is also available at: https://johnbandler.com/introduction-to-law-outline/