1. Civil vs. Criminal Law
2. Burdens of Proof
3. Divisions of Civil Law
4. Liability Rules
5. Types of Damages
6. Phases of the Legal Process
7. Plea Bargains and Settlements
8. Common Law vs. Statutory Law
9. Administrative Law
10. Reasons for Punishment
11. The "Loser Pays" Rule
12. Hierarchy of Authority
Civil and criminal cases differ in several important respects, including:
Civil and criminal trials can sometimes occur for the very same act. For instance, killing a person can lead to both a criminal trial for murder and a civil trial for wrongful death. The O.J. Simpson case is probably the best known instance of this.
Names of the sides. In criminal trials, the state's side, represented by a district attorney, is called the prosecution. In civil trials, the side making the charge of wrongdoing is called the plaintiff. (The side charged with wrongdoing is called the defendant in both criminal and civil trials.) Procedural protections. Defendants in criminal cases have certain rights, including some guaranteed by the Constitution, that they do not have civil cases. For instance, a defendant cannot be compelled to testify in his own criminal trial, but he can be so compelled in a civil trial. Burdens of proof -- see explanation below. Possible punishments. Only a criminal conviction can lead to prison or capital punishment. A losing defendant in a civil trial will usually have to pay monetary damages, though some other remedies are also available.3
In addition to civil and criminal, there is also a third type of case:
administrative adjudication. For more about this, see the section
on administrative law below.
The different burdens of proof are loosely reflected in the number of
jurors required to reach a verdict. In the federal system and in
almost every State, unanimity is required in criminal trials. In
civil trials, unanimity is sometimes but not generally required; the exact
number of jurors needed to render a verdict differs among jurisdictions.
(The number of members on a jury also differs substantially among jurisdictions.
In criminal trials, 12 is the usual number, but it is sometimes lower.
In civil trials, smaller juries are more common. Juries almost always
have at least 6 members.)
Of these three categories, tort is certainly the most controversial.
The law of property and contract have seen little change over the decades,
but the law of tort has gone through many changes. The explosion
of litigation in the latter half of the 20th century has taken place, for
the most part, in torts.
Strict liability. Under a strict liability doctrine, a defendant will be held liable for any damages to the plaintiff, so long as conditions of causation are met. For instance, a strict liability approach to product liability would say that if you were injured by your lawnmower, the lawnmower manufacturer would have to pay damages regardless of how much care was taken in the production of the lawnmower.
Negligence. Under a negligence doctrine, a defendant will be held liable for damages only if he took less care than he should have taken. The amount of care a defendant should have taken is called "due care," which is defined as the amount of care a reasonable person would have taken under the same circumstances. To take the lawnmower example, a negligence approach might say that if the lawnmower manufacturer had inspectors on the factory floor, did product safety testing, and attached clear safety guidelines for consumers, then it would not have to pay damages for injuries from its lawnmowers.
These doctrines rarely exist in their pure form. Actual legal
rules often incorporate elements of both approaches. For instance,
strict liability is usually modified with a rule of contributory negligence,
which exempts the defendant from liability when the plaintiff failed to
take due care. (In the lawnmower example, the manufacturer might
avoid liability because the injured consumer did not follow the safety
guidelines.) In negligence, some activities (such as failing to abide
by a public safety ordinance), are deemed "negligence per se," which means
doing them at all creates liability for any harm that might occur.
For example, a landlord who failed to maintain his fire escapes would automatically
be held liable for damage caused by them.
Some have argued that punitive damages are unjustified, because compensatory
damages are (in theory) sufficient to make up for whatever the defendant
has done wrong. In response, it should be noted that there is less
than 100% certainty of being held liable for one's harmful acts (because
they may never be discovered, or the victims may choose not to litigate),
so an additional punishment may be needed to provide sufficient incentive
not to commit negligent acts in the first place.
In criminal trials, the agreement is called a plea bargain. In a plea bargain, the defendant pleads guilty to a lesser charge in return for a lower sentence. Some plea bargains occur because the defendant doesn't want to risk a guilty verdict on a more serious charge, while the prosecutor doesn't want to risk getting no conviction at all. Other plea bargains occur as compensation for testimony in another case. For instance, the prosecutor may be sure he can convict a defendant on drug dealing, but he might let the dealer plead down to mere drug possession if he testifies against a drug lord. Any plea bargain must be approved by a judge, and the judge can reject a plea bargain he disagrees with. But this rarely happens.
In civil trials, the agreement is called a settlement. In a settlement, the defendant makes a payment to the plaintiff for dropping the case. A settlement usually occurs because the defendant doesn't want to risk a large judgment at trial, while the plaintiff doesn't want to risk getting nothing at all. Unlike in a plea bargain, the defendant does not admit to any wrongdoing.
In both plea bargains and settlements, both parties to the agreement
are trading uncertainty for certainty. Both parties realize that
the trial could lead to a very good or a very bad outcome. Rather
than risk getting the bad outcome, each party accepts an intermediate outcome
instead. Naturally, a party who thinks the good outcome is more likely
will demand more concessions in the plea bargain or settlement, while a
party that thinks the bad outcome is more likely will be willing to concede
more. Given most people's aversion to risk, it is not surprising
that settlements and plea bargains happen as often as they do.
Criminal laws are all statutory. But most of civil law has its origin in common law, albeit modified by various statutes. The rules of common law are not to be found in codes written by a single authority, but instead in the case law -- that is, the body of decisions made in previous decisions by judges. The guiding principle of common law is the notion of precedent. This means that judges are, in general, expected to make rulings that follow the pattern established in previous, similar cases. When a new case arises whose resolution is not clearly dictated by existing precedents, the judge's decision in the case becomes the precedent for future cases of a similar nature. In this way, the common law develops over time in response to the cases that appear before the courts.
Common law is a venerable system with roots that precede the existence of the state. The Anglo-American common law can be traced back to the local courts of Anglo-Saxon villages, long before there was an English king. For many centuries, the common law system had authority independent of the king, but eventually the common law system was absorbed into the (previously separate) legal system of the state.
The United States inherited the common law system of the British, and
at some point the U.S. Congress even passed a law that adopted the whole
of the British case law as the starting point for American courts.
However, the law has developed differently in each State, so the current
precedents may differ from State to State. Louisiana, which was settled
by the French, has a civil code system instead of common law. Civil
code is a system in which all civil law is passed by the legislature, as
in France and much of continental Europe. In the other States, civil
law is now a hybrid of common law and civil code.
The significance of administrative law should not be underestimated:
In a typical year, Congress passes around 300 laws, while administrative
agencies write approximately 10,000 regulations. These laws, when
violated, are adjudicated in special administrative courts that are separate
from the usual legal system.4
The rules and procedures of administrative courts differ substantially
from those described elsewhere on this page, in ways too extensive to describe
The rationale behind the loser pays rule is to provide an incentive for litigants not to launch frivolous cases, which waste legal resources and empty the wallets of defendants. The litigation explosion in the U.S. in recent decades has motivated a great deal of interest in adopting the loser pays rule in this country. The major difficulty with the loser pays rule is that, although it probably deters frivolous suits, it may deter some suits with merit as well. It seems especially harsh to punish people for launching suits in areas of law where the precedents are unclear or nonexistent, so that it's reasonable to think either side may win. But frivolous lawsuits also create a heavy burden, so the debate over the loser pays rule turns on the magnitude of this burden relative to the danger of deterring suits that may have merit.
It is worth pointing out that the American system does have devices
similar to the loser pays rule, at least in some jurisdictions. Some
States allow defendants to countersue for payment of legal expenses.
In other cases, a judge may simply order the losing side to pay the legal
expenses of the winner (just like the loser pays rule, but subject to the
judge's discretion). In pre-trial motions, the defendant may move to dismiss
a case that lacks legal merit. A judge who perceives a case as frivolous
can throw it out of court before it even reaches trial. All of these
measures serve to reduce (though not eliminate) the burden of frivolous
Appeals courts are the next level up. They hear a fraction of cases in which the decision or procedure of the district court was arguably flawed in some way. Appeals courts rarely, if ever, second-guess the factual findings of district courts -- their job is to decide questions of law, not fact. If the fact-finding procedure of the district court was flawed in some way, the appeals court may order a new trial at the district level. Otherwise, the appeals court judges will take as given the facts found by the district court and apply their findings of law to those facts.
A supreme court is the highest court of appeals in a jurisdiction. When the decisions of appeals courts are appealed, they go to the supreme court. The judges who sit on the supreme court have discretion to decide which cases they will hear. Typically, some fraction of the judges (in the case of the US Supreme Court, 4 out of 9 Justices) must vote in favor of hearing a case; this is called granting certiorari, or "cert" for short. When a supreme court makes a ruling, its decision is considered a binding precedent for all lower courts in its jurisdiction.
Each State has its own supreme court. The US Supreme Court is
the supreme court of the federal court system. It hears appeals from
US Circuit Courts of Appeals, as well as some special courts such as the
US military courts. In addition, the US Supreme Court may hear appeals
from State supreme courts on decisions that rely on the US Constitution
or federal law.
(1) Throughout this page, I will use the word "state" (uncapitalized)
to refer to any government, and I will use "State" (capitalized) to refer
to a member state of the United States of America.
(2) Corporations are defined as legal persons. Also, sometimes the state will be a party in a civil dispute, such as when an individual sues the government for civil rights violations, or when a government sues a private entity for damages (e.g., the recent suits lodged by State attorneys general against tobacco companies). Other examples include SEC and IRS violations, custody cases, and civil commitment cases.
(3) Two examples of other remedies are specific performance and injunction. In breach of contract cases, a remedy of specific performance requires the breaching party to perform the contract's promised duties rather than pay damages. An injunction prohibits a party from engaging in a specific behavior.
(4) Administrative courts are considered part of their parent executive agencies, not part of the judicial branch of government.
(5) To confuse matters a bit, the State of New York calls its district level courts "supreme courts." Its highest court (what would elsewhere be called a supreme court) is called the New York Court of Appeals.
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