Intro. to Planning Law#1
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Transcript of Intro. to Planning Law#1
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University of Technology
Introduction to Law
Lecture # 1
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What is Law?
How Legal Systems AreOrganized?
The Components of
Interpreting the Law
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Law pervades our lives
Law is a body of rules enacted by public
officials in a legitimate manner and backed
by the force of the state. Law regulates the public and private
institutions that are a central part of our lives
Law is a word of many meaningsit is
difficult to define
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Law and Justice
Definitions of law do not necessarily include justice
Justice is fairness in treatment by the law.
The term justice is used many ways: justice is winning
justice is achieving desired results good v. badresults
justice is equated with normative values right toprivacy v. rights of the unborn
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Types of Law
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Civil Law
also called Roman law, Romano-Germaniclaw, or continental law
is the oldest family of law
starts with a codethe compilation of laws
the code expresses rules of law as general
principles
the code provides answers for all disputes
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Socialist Law
originated in the former Soviet Union
partly based on the civil system (a code)
but is also revolutionarylaw is to be usedto create a radically different society
based on the philosophy of Karl Marx and
Vladimir Leninthe societal ownership ofthe major means of production is a guidingprinciple
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rejects law as the fundamental basis for
societylaw is the arbitrary work of an
autocratic sovereign
the primary goal is the protection of the
stateprivate property receives less protection
law has an educational roleit is aninstrument of educating members about the
new Socialist society
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Islamic Law
most legal systems of the world are secularbut not all
Islamic law is termed thesharia
based on the Quran, which sets out principlesrevealed by God
and the Sunna which contains the practices
and decisions of Muhammad
Islam and Islamic clerics influence the law
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Common Law
traces its roots to medieval England
after the Norman conquest (1066) the Kings
courts began to apply the common customs ofthe entire realm rather than one village
common law came to be viewed as general
law as opposed to special lawit was the lawcommon to the entire land
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Equity
the common law became technical andevolved into a hard and limited law
common law remedies were largely limited tomonetary damages
the refusal of judges to adapt gave rise toequity law
equity meant fair dealing and equitableremedies were more flexible (e.g., injunctions)
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colonists brought principles of British commonlaw
they brought procedures but did not always apply
the substance law was adapted to the new society
by the nineteenth century most states had merged
their separate courts of law and equity today the term common law refers to the case
method
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Key Characteristics of Common Law
Judge-Made Law
Precedent
Uncodified Rules and Regulations
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Judge Made Law
until the late 19th century, there was no importantbody of statutory law in the U.S.
common-law courts developed rights in the area
of property, torts, wills and contracts, and theydefined such felonies as murder, manslaughter,arson, robbery, larceny and rape
common laws most distinctive feature is thedevelopment of a system of law from judicialdecisions
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Precedent
court decision that serves as authority for decidinga similar question of law in a later case
also referred to as stare decisis let the decision
stand
sometimes statements in a case are notinterpreted as precedentobiter dicta(dictum
or dicta) the part of the reasoning in a judicialopinion that is unnecessary to resolve the caseisnot considered precedent
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reliance on precedent is central to the common
law approach
provides stability, coherence, andpredictability
Stare decisis is usually wise policy, because
in most matters it is more important that theapplicable rule of law be settled than that it be
settled right. Justice Louis Brandeis
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Uncodified Rules & Regulations
there is no one place to look for a statement ofthe law
the law emerges through precedent found in court
decisions
common-law judges and lawyers reason byanalogy which allows leeway in formulating new
legal rules or modifying old ones, becauseanalogies are neither correct nor incorrect, onlymore or less persuasive
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judges may distinguish a current case
from previous ones
judges may find that a case differs fromall previous cases or that a previous case
was wrongly decided
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Adversary System
the common-law is adversarial, civil law isinquisitorial
the parties are responsible for callingwitnesses and asking questions
a judge acts as a neutral decision makerpresiding over a battle between the opposingparties
the best system for finding the truth?
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Party Prosecution
it is the responsibility of the parties, not the judgeor jury, to define the legal issues
encourages each party to present its best case
Neutral and Passive Decision Maker
the judge is a neutral arbitrator and expected to bepassive
must be free from pressure--independent
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Federalism
federalism divides power between thenational and state state governments
federal law refers to the law of the national
governmentapplies across the nation state law applies to citizens within its
territoryit is extensive and diverse (e.g.,business and marriage law)
local law applies to a limited geographic orfunctional areastates grant local
jurisdictions legal powers
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Multiple Sources of Law
federal, state and local laws arefound in multiple sources
Constitutions constitutions are the top rung
a constitution is the document that establishes theunderlying principles and general laws of a nation orstate
define the powers of branches of government
limit the powers of government (e.g., Bill of Rights)
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Constitutions specify how government officials will be selected
federal and state constitutions vary (e.g., selection ofjudges)
Statutes statutes are laws enacted by federal, state or local
jurisdictions
until late 19th century statutes were secondary to courtdecisions
today legislatively enacted law is extensive andcommon
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Administrative Regulations rules and regulations adopted by administrative
agencies that have the force of law
e.g., IRS decisions, nursing home standards, zoningregulations
newest and fastest growing source of law
administrative law concerns the duties and proper
running of an administrative agency
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Judicial Decisions
appellate court decisions are animportant source of law
legislatures pass law wholesale courts
make it retail (Friedman 1984) U.S. law today is primarily statutory
and administrativebut some areas(e.g., tort law and court procedures)
are dominated by judge-made law case law is important in determining
the meaning of other sources of law
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Public & Private Laws
Public law directly involves government(e.g., constitutional, criminal,administrative and international law)
Private law governs the relationshipsbetween private citizens
Tort law involves the legal wrong done to another person
not really privateit relies heavily on the actions of publicagencies
e.g., divorce lawgoverns private relationships butinvolves court decisions
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Civil & Criminal Law
a civil suit involves a dispute betweenprivate parties
a criminal suit involves a violation of agovernments penal laws
difference between who has beenharmed (individual v. state)
types of remedies differ (compensationv. prison, fines or probation)
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there are different types of criminalviolations
a felony is a more serious criminal offensethat involves a possible prison sentence of
one year or more
a misdemeanor is a less serious crime thatusually involves a possible prison sentenceof less than one year
criminal and civil law can sometimesoverlap (e.g., a drunk driver who killssomeone)
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Substantive & Procedural Law
substantive law defines legal rightsthe law defines the legal relationshipbetween the citizen and the state, andamong citizens themselves (e.g.,
contracts, property, torts, will criminallaw)
procedural law establishes the methodsof enforcing legal rights governs the conduct of cases in court
protects against arbitrary government actions
the central idea is due process of law
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Remedies
judgment a courts official decisionabout the rights and claims of eachside in a lawsuit
remedy the relief granted by thecourt, remedies include: declaratory judgments a judicial determination of the
legal rights of the parties
restitution the return of goods a party is entitled to
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the most common remedy is monetary damages
Compensatory damages payments for the actualharm suffered (e.g., medical bills, lost income, painand suffering)
Punitive damages monies awarded to a person whohas been harmed in a particularly malicious or willfulway (I.e., not related to the harm done and meantpunish the responsible party)
under equity law litigants seek an injunction a courtorder that requires a person to take and action or refrainfrom taking action
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Doctrines of Access
used to control the flow of cases intothe judiciary the court must have jurisdiction the power of a court
to hear a case in question
controversy must be a real disputenot hypothetical
plaintiff must have standing to sue
are judicially created and can bechanged or waived for a particularcaseespecially in policy lawsuits
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Interpreting the Law
citizens typically misunderstand the howjudges and lawyers interpret and apply the law
the law is not a series of precisely written andreadily located rules that cover situations
lawyers and judges must make sense out ofthe words found in constitutions, statutes,administrative regulations, and previous courtdecisions
some areas of law are relatively settled andothers are notcreating discretionary choices
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discretionary choices lead tointerpretationjudges and lawyersmust make choices
meaning of the words legislatures and judges use vaguelanguage that leaves considerable room for interpretation
conflicting laws it is not uncommon to find one lawconflicting with another (e.g., allowing free exercise ofreligion may appear to be the establishment of that religion
by the state)
gaps in the law despite all of our law, situations do arisethat are not contemplated, the discretionary choices courtsmake about these matters are important
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U.S. law is complex, fragmented andvoluminous
Our common-law traditions are unique anddiffer considerably from civil-law traditions
Our legal system is adversarial
Juries play a more important role than inmost legal systems
The Supreme Court decides some of themost pressing social and political issues ofthe day
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Planning, in the widest meaning of that word is
constantly on debate in our society. Demands
for planning are increasing and so are the
demnads for quality in the planning process.
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Planning & Land Use Law
After all, a policeman must know the
Constitution, then why not a planner? San
Diego Gas & Electric v. City of San Diego, 450
U.S. 621, 661 n.26 (1981) (Brennan, J.,dissenting
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Legal Foundations of Planning &
Zoning
United States Constitution
State Constitutions
State Statutes
Case Law - Federal and State
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Police Power
Sovereign power of the state to regulate andcontrol private behavior in order to protectand promote greater public welfare
Protection of health, safety, morals,convenience, and general welfare
Police power must be delegated by state tocounties and municipalities
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Substantive Due Process
Legitimate Governmental Purpose
Protection of health, safety, welfare, morals,
property values, quiet enjoyment, etc.
Rational Relationship A conceivable,
believable, reasonable relationship
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Critical Constitutional Concepts
Equal Protection - Treating those that are
similarly situated the same, or making
distinctions only on legitimate grounds
Distinctions based on fundamental right or
protected class status are unconstitutional
(see, e.g., Moore v. City of East Cleveland)
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Presumption of Validity
Legislative actions are presumed valid and
constitutional, and the burden is on the
person challenging the action to prove
otherwise.
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Validity of Zoning
Village of Euclid v. Ambler Realty, 272 U.S. 365
(1926) (holding that the mere enactment and
threatened enforcement of a general zoning
ordinance that creates various geographicdistricts and excludes certain uses from such
districts is a valid exercise of the police power
and does not violate due process or equalprotection provisions of U.S. Constitution)
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Eminent Domain
Berman v. Parker, 348 U.S. 26 (1954)
Concept of public welfare is broad and
inclusive, includes spiritual values as well asphysical, and aesthetic values as well asmonetary. Once question of public purpose
is settled, legislature has discretion to take all
parcels needed to avoid piecemealapproach to implementing redevelopmentplan.
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Susette Kelo v. City of New London, 125 S.Ct.2655 (2005).
Citys exercise of eminent domain power in
furtherance of economic development plansatisfies the public purpose interpretation of
the public use requirement of the TakingsClause of the Fifth Amendment even though
city does not intend to open land for use bygeneral public. Affirms Berman v. Parker
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