So what we're going to be talking about today is the American legal system. Now that's obviously quite a broad subject. You'll be studying that for pretty much the next three years in a variety of different classes. You're going to take 86 credits at a minimum on the American legal system really so what am I going to tell you in 45 minutes? We're going to focus here today on some general substantive knowledge about the types of law that we have here in the United States and their sources -- the types of law and their sources. I'm going to use the blackboard here for just a little bit. So let's say our big picture question here is American legal system. Now the fact that I'm using a blackboard is not a signal to you that you need to write anything down, it's a signal that I am a visual learner. Some of you might be visual learners as well so I'm going to write a few things down. But you can allow it to wash over you. You still have a few more days of summer left before you're really in class. So let's talk about the American legal system. You're probably aware that we have a federal system. A federal system is a system wherein there is one overarching government and -- in our case the United States government -- and state governments. There's power divided between a central government and smaller governmental units. So we have in our federal system the United States government and then the governments of the, of the 50 states. In learning the law in law school you'll be dealing with both of those types of law -- both the federal system and the state system. So just to give you an illustration of how this works, it means that anywhere that you are within the United States you are subject to more than one system of laws. So you're in -- you're in Charlottesville, Virginia -- and you notice I said a town and a state right? So when I say there are two systems of government: federal and state, some of you who are from larger places -- larger cities like New York or LA -- might think, well what are we chopped liver? How come I'm -- and you know -- how come the city is not in your description of the system that we have? Cities are units of the state government. So the city -- cities get their power from the state government. So although you could -- you have very very substantial city governments like the government of New York City, it gets its power through delegation from the states. So we're talking here about the national government and then the state government. So you're in Charlottesville, Virginia. In Charlottesville, Virginia you are in the 16th Judicial District of the state of Virginia. You're in the 16th Circuit of the state of Virginia. And the state laws and the -- and the local laws that you're subject to ultimately are subject to review by the Supreme Court of Virginia. You are also in the Western District of Virginia within the federal system. The Western District of Virginia feeds into the Fourth Circuit Court of Appeals, which is one of the courts of appeals within the federal system. And then to this -- to the US Supreme Court. Here you are subject to laws, from local ordinances -- for example don't park your car in the grass. If you're living in the city of Charlottesville that's an ordinance that you're subject to -- you're subject to state laws and you're subject to federal laws. So we have concurrent jurisdiction: two different systems of government working at the same time and within each of those systems of government we have different types of laws. So when you think of the law and you think of law school probably the thing you think of the most is the United States Constitution. That's probably the first thing that comes to mind and that's a good place to start. The United States Constitution -- well whose birthday by the way is the 17th of September, so happy almost birthday to the Constitution -- the Constitution sets out the the system of the federal government and has a lot to say about it. Basically dictates the relationship between the federal government and the state governments. So the United States Constitution is the source of a lot of the rest of all I'm going to be putting up here today. Underneath the -- the United States Constitution we have federal statutes: statutes that are -- that are passed by Congress under power that is given to Congress in the -- in the Constitution. The Constitution tells Congress what its powers are. We also have -- I'm going to stick this under here in a little funny way -- we have regulations -- we have various forms of regulation. In particular in the federal system we might think about federal agencies, executive agencies like the EPA or the Food and Drug Administration. Those agencies are part of the executive branch but they get their power through delegation from Congress. Congress says to the agencies, you're empowered to do X or Y and the agencies work under a particular statute or other enactment that gives them their power -- that defines their power -- and they go along and elaborate on whatever that subject matter is -- say the Clean Water Act, right? The EPA then passes regulations that flesh out what the Clean Water Act means. Then we have common law. I'm going to come back to common law in a little bit, but common law is judge-made law. Law that's made by judges and courts. This is the structure of our federal system and you have the exact same structure replicated at the state level. So you have state constitutions and each state's constitution defines the structure of the government for that state, defines the powers of the legislature of that state and defines many other things about that state, including what rights that state recognizes as a matter of its own constitutional law apart from the law of the United States Constitution. We then have statutes and regulations with the same structure as before: state legislators which then can delegate some of their power to executive agencies or bodies that use that to implement regulations and we have common law. Yeah there are lots of different things we can say about this -- and again you'll be talking about this for the next three years of your life -- but let's -- let's highlight just a few features. So one is to try to define which one -- define each one of these -- and let's do it, kind of in terms of their sources. Ok so here I want to start with the United States Constitution. Again, so the United States Constitution -- you probably have some sense of how that was -- how that came to pass, right? So we had a -- the founders, who framed the Constitution that was ratified by the states and in the Constitution itself -- defines what has to happen for there to be amendments to the Constitution and so forth and so on. We then have statutes which are led -- have a legislative feature to them, right? Statutes are passed by the legislature. We have regulations which as a general matter, and not entirely -- legislatures can delegate their power in lots of different ways in keeping with whatever is permitted by the Constitution -- so they can do a lot of different ways but often they're delegating through executive agencies. And the important thing that I want to flag for you here is that the executive through that process of delegation does have a role to play in defining what the law is. We think of the executive as mostly enforcing the law, right? If we think about the three branches of government, we think about the executive as being the enforcer. But through congressional delegation executive bodies can also play a role in defining what rules actually govern us. And then we have the common law and the common law is the creature of the judiciary. In some ways the common law can be the hardest thing for people to wrap their minds around. So when I say common law I mean that there's no statute. There's no written-down enactment by a legislature or by an executive agency that is the law. The law is itself made by the courts. So if you, you know -- knock on wood -- I hope this doesn't happen at an interview -- if you come out of here and you get into a collision on turning onto Arlington Boulevard you might get sued or you might sue somebody else for damages arising from that car accident. And if you do that in Virginia courts you will be bringing a claim of negligence or you will be having a claim of negligence brought against you. I mean I don't wish either of these things on you but I certainly hope you weren't negligent coming down the Arlington Boulevard. The court in deciding that case is not going to be looking at any statute. It is going to be deciding the case based on a priori cases decided by Virginia courts. The common law is a creature of adjudication and it predates the founding. When at the time of the Constitution was ratified all of the now states had their own systems of common law -- of judge made law that they had developed in colonial times -- and this is a type of system that was brought over from England. England and the United States have what are called common law systems because they have this feature of judge-made law in them. A lot of countries don't have this. If you go into the continent, in Europe you'll find civil law. Those are systems that are built on and have their roots in Roman systems actually -- where there's a code that tries to define everything. Where there are positive enactments of laws -- statutes essentially -- that define what constitutes negligence. For example we have a system where some part of the law is made by judges in courts that have no other sources other than their own decisions. So that's a kind of interesting feature of our system. And you're going to be spending some time with the common-law, particularly this semester, so we have the same setup here the. The Constitution is the Constitution. We have the legislature, the executive and the judiciary all being actually sources of law in and of themselves. Now on top of that the judiciary obviously has a different role to play because the judiciary also interprets these other sources of law --interprets the Constitution, interprets the statutes, interprets the administrative regulations and decides cases involving all of these. So the judiciary is -- it wants a source of its own law and the common law and as the decider for the the other types of law that we have. So that gets us to a kind of second question. So those -- those are the sources of the law -- and you can see all three branches of government are represented there -- so like, but the -- the question about the judiciary gets us to another question which is, well who can decide what type of question? And the fancy word for that is jurisdiction. Who has jurisdiction over certain types of questions. Now I have a colleague: former dean of the law school. When I told him that I was going to be giving a talk like this I said -- he said "the thing that they were -- the only thing that you really need to tell them is state courts decide state and federal cases and federal courts decide state and federal cases." Yeah, so you know I could I guess just come and say that and drop the mic and leave and just leave you guys to ponder on that for the next 44 and a half minutes. I'll try to give it more flesh than that but it is actually something that's a quite complicated part of our system. If you look at this system there are only two really easy answers here that would not provide any kinds of headaches for you guys and that is you could say federal courts decide federal questions and state courts decide state questions, right? Complete separation. Or you could say everybody decides everything, have at it. We don't go with either one of those easy answers -- we have something that's in between where federal courts can under certain circumstances decide questions of state law and state courts can under many circumstances decide questions of federal law. So those -- those issues of when is that the case -- who can decide what those are? Questions of jurisdiction -- and in certain classes, particularly federal courts, conflict of laws -- a variety of different cases that your classes -- that you'll get to in your second and third year -- you'll be focused on that question of who can decide what. So I'll just flag it for you now. State courts decide state and federal cases, federal courts decide state and federal cases and when they can decide it is a complicated thing which you'll learn more about. So another thing that this system brings up is what's -- what's the the pecking order among these different types of law, which one trumps another one? So otherwise you know you could -- you could say, if you think of it as a game of cards, you and people are laying down different types of cards. You don't know which one trumps the others. You don't know which one is -- is the supreme law. So we have to have something that settles that because you can -- given particularly that these sources of law are coming from different types of bodies -- you can have conflicts between that. So when there's a conflict what type of law wins out? Now did anyone bring their pocket Constitution today? If you did you don't want to admit it right? I brought one, it's okay. All right, the Constitution of the United States Article 6, Section 2: "This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the judges in every state shall be bound thereby and anything in the Constitution" -- I'm sorry -- "the judges in every state shall be bound there by anything in the Constitution or laws of any state to the contrary notwithstanding." So the framers thought about this question and they said the federal law -- the law of this constitution and laws may, pursuant to it. in the federal system is going to be the supreme law of the land. It will carry the day. "Anything in the state laws" notwithstanding. So that means that this is -- this is the most important source -- this is the -- this is the definitive source of law in our system. Anything below this that conflicts with the United States Constitution will be invalidated. And you recognize that courts have the ability to do that when they do and what court can do that, right? Those are questions -- those are questions we're putting to the side. But courts are going to enforce the Constitution as against all these other sources of law. Just -- side note -- wasn't totally obvious that courts would be the ones to perform that function. We take it for granted that courts engage in what we -- what we call judicial review -- to review the constitutionality of enactment -- some passed the the federal and state level. You'll see in constitutional law that's not actually spelled out in the Constitution. One of the most important early things that the Supreme Court did was to confirm that that was their role. They're the ones who engage in this -- in this process that we call judicial review. But let's -- let's -- we know now that the Constitution's at the top but what does that mean for everything else? I'm actually going to start at the bottom and work the way back up to the Constitution. So common laws -- we said this judge-made law and let's imagine that we're in a state -- we're in a -- we're in a state -- we're in Virginia. We're talking about the law that governs a collision on Arlington Boulevard. Let's say it's a matter of state common law. It's just judge-made law. If the General Assembly of Virginia comes along and passes a statute that relates to that then that statute is going to displace the common law. It will override the common law and if there's a regulation that's passed through -- through legislative delegation that too will displace the common law. So we've got a common law which can be overwritten by statutes and regulations. And obviously within the state system all types of law have to conform to the state constitution. If they don't they'll be struck down under -- under the state's constitutional system of judicial review. So you've got that. Now you come up here to federal common law. Federal common law and how much of it there is -- is this kind of interesting question. And there's a history there. What you're going to learn in civpro. And for my tort students you're going to get tired of me saying have you gotten to Erie yet? Have you gotten here yet in Civil Procedure? And you're saying no no no and then one day you'll say yes, but I'll be able to tell because you'll have this kind of gobsmacked look on your face after you've come from Civil Procedure. And so how much federal common law there is has been a question though that was dealt with by the Supreme Court in the early 20th century but there is certainly still some federal common law. Admiralty is one example. So if instead of the collision happening on Arlington Boulevard it happens on seas that are within the jurisdiction of the United States -- bodies of water within the jurisdiction of the United States -- that could be a federal common law Admiralty case -- which don't get me started on boat tours. I love boat tours. I never want to get on a boat but because boats are -- accidents that happen on boats -- but boat torts are very interesting and that's -- that's kind of federal common law. That's where we are there then you have the same thing happening, right? The statutes or regulations can displace the common law and of course everything has to be consistent with the United States Constitution. So part of what courts are doing is making sure that the law that they're dealing with is consistent with each other and getting rid of whatever it is that doesn't fit that's overcome by -- that's supplanted by the superior form of law. The more -- the -- the more authoritative form of law. Last thing that I want to point out. We talked about three things. We're talking about the sources of the law, of the jurisdiction and the question of supremacy or which type of law wins. The last thing I want to talk about is where you in the next year are going to see these different types of law because you're going to take a set of required classes that all can be plugged into this system. So let's talk just a little bit about what it is you're going to see and where. So I don't want to call on the people who -- who are in the front row because they were good enough to sit in the front row -- so I'm gonna go back here a little bit. Hi what's your name? Hi Aidan. Nice to meet you. Can you tell me the name of a class that you'll be taking either this semester or a required class for next semester? Civil Procedure. Excellent so you'll be taking Civil Procedure. You started with the hardest one. So Civil Procedure is a little bit difficult to put on this map just because it's -- it's um -- it's got a kind of funny aspect to it. It's -- it's not as straightforward to put on this map as others are. So let me explain a little bit about Civil Procedure. Civil Procedure are the rules that govern federal cases -- cases that are filed in the federal system. What -- what you get in Civil Procedure -- it's federal Civil Procedure. You could take another class on Virginia Civil Procedure. When you take the bar in New York or California or Texas or wherever you'll need to learn their state rules of civil procedure. But Civil Procedure is the rules that govern the the filing and life of a case -- and the next speaker that you're going to hear from, Professor Ben Spencer is going to walk you through the life of a case, he's a Civil Procedure expert -- the reason that Civil Procedure is a little different is it's -- it's source. So Civil Procedure -- in terms of where it belongs on this -- belongs up here in this area. So I'm going to write it over here. Congress passed something called the Rules Enabling Act. So that's -- that's the statute that then delegated the power to determine the Rules of Civil Procedure. Rather than delegating to an executive agency they delegated to the courts, to the -- to the Supreme Court -- to say you have the power to determine the rules of federal Civil Procedure. And the court actually relies on a rules advisory board that's made of a variety of different experts: practitioners, professors -- including our own professor Spencer -- to make recommendations to the Court. The Court then makes recommendations to Congress. Really, the Court practice committee has an enormous amount of power of the rules. Congress is highly likely to approve whatever it is that the court proposes. So Civil Procedure lives up here in this world within the federal system. It's a -- it's a set of rules that's made under delegation from Congress. Delegation to the Supreme Court that makes some amount of sense. All right someone named another class that you're getting ready to take: torts. Good choice. So torts -- torts is kind of the most straightforward of these. Torts lives down here. Torts is a matter of state law and it's largely a creature of state common law. We will see some statutes when we're talking about torts and we'll see a little bit -- we'll get a little glimpse of the United States Supreme Court because there are some aspects of state tort systems that the Supreme Court has decided had constitutional problems and they needed to get in there and decide them. So again none of these -- none of these types of law lives in a vacuum. They all relate to each other. And courts are figuring out how they all relate to each other. But by and large what you learn in torts is state common law. Now that raises a question which I just want to flag for you all so you can all be okay with it. Your professors might mention it to you particularly in torts or contracts -- but if, you know -- if torts is a creature of state law and we have 50 different states what is it that you're learning when you learn torts? Here are we going to focus on Virginia law. Are you going to be responsible for the state law of 50 different states? No. What we learn is the general principles that most states share in terms of torts and there's a lot of correspondence across the states on this. Now don't get complacent about it. When you go out and you are barred in a particular jurisdiction you're going to need to know the specifics of that state's law but that's not our job in first semester torts. Our job in first semester torts is to learn the basic concepts that dominate torts across the 50 states and if you need to know the particulars of a particular place you're going to learn the research tools that you need to do that. There are a lot of -- there are actually 50 state surveys on tort law where you can quite easily look at the variations among states but we're going to be talking about kind of the big picture and the -- the common themes. What's another class? Contracts. So contracts I'm going to put -- contracts here, kind of straddling the common law and then the next one up -- the kind of statutes and regulations world. That's because contracts like torts is a matter of state common law -- started as a matter of state common law. People would have a contractual dispute, they would come into a court, one of them would allege breach of contract, the court would decide that question and by and large a lot of contract still works that way. But in contracts there was something developed called the Uniform Commercial Code which is the system of rules -- it's a code right -- it's a code governing contracts related to goods. So now we have and end to that story. The -- the various states have adopted the UCC as law in the end in the states to govern contracts related to goods in the states. So because the UCC has been picked up by so many states I think it's important to recognize that contracts as you will learn it has both a common-law feature and a a code-based -- a legislative feature. You're going to be starting with common law but you're also going to be exposed to the UCC. Give me another one. Criminal law. So you know, the thing about criminal law first of all -- is just the first thing you know is -- it's not Law and Order. I'm sorry to say you do not know criminal law from having watch Law and Order and it may feel at the beginning a little bit less exciting than Law and Order. I think that's probably safe to say. And part of what you're getting out of criminal law -- I think this is important to recognize -- part of what you're getting out of criminal law is the transition between common law and codes. So when what you learn in first semester criminal law is going to be state criminal law. And you're going to learn that states started out with the common law approach to criminal law and they have uniformly moved to statutes. And primarily you'll be focused on the model Penal Code which has not been adopted outright in a bunch of states the way that the UCC has but informs the state enactments of all the different states. And all states have criminal law that's a product of statute. Okay so part of what you're actually learning about in criminal law is not the substance of the criminal law itself it's the difference between common law and codes. And you're thinking of as a matter in the criminal system of giving people notice of what's criminal and what isn't -- maybe codes are the better way to go when that's what's at stake because writing down the law gives people notice of what law they have to conform to. But then that raises all sorts of questions of interpretation -- trying to anticipate all of the different things that people could do and what their status is under the criminal law. That's something that writing down the code makes you have to do and you have to be good at drafting and you have to think about how the words are going to be interpreted. So part of what you're doing in criminal law is thinking about the difference between common law and a code-based system. And if you want to do more criminal law we have classes -- they're still not Law & Order but they might resemble that a little bit more -- that are about kind of the procedure of criminal law. About criminal investigation and criminal adjudications. So there are additional classes you can take. They get you even further into the criminal system in the spring of your 1l year and beyond. All right another class that you're going to take this -- this is where you're going to take this semester. Does anyone look far enough ahead to think what you're going to be taking next semester? Property, ok. Great. So property is another one of these classes -- property is a state common law system. Again you're going to see some statutes and -- property -- you're going to get a little involvement from the Supreme Court when it comes to takings but by and large you're going to be operating in the state common law world. And what's the last one you're going to take: constitutional law, which obviously lives up here. So that's what you're going to be taking and kind of where it fits, right. So I think it's nice they have a map to know this is where I am in the American legal system, this is the type of stuff I should expect to see in torts: the courts are making this up as they go along based on their prior cases. They're using precedent to determine this in in criminal law. I've seen what it looks like to have a common law determination of what's criminal, now I'm engaging with the model Penal Code and thinking about how to draft a statute to address this same issue. All right, so you can have a sense that this is -- this is why I'm doing this for I am -- and I've already forgotten your name -- that I called on -- Aiden, that's what I thought, but I'm never sure. So, Aiden congrats on doing the first cold-call of your guys law school tenure. Very good, any questions? Yeah, yeah so I'm going to go back to this Primacy Clause, right, Constitution, in the law of United States shall be the supreme law of the land and the judges in every state shall be bound there by anything in the Constitution or laws of any state to the contrary notwithstanding. So this is sitting on top of this and there's a lot of -- there's a lot of jurisprudence about that because the -- the issue with that question is to determine whether there actually is a conflict between the state system and the federal system and sometimes the word federalism gets used not just to describe that we have a federal system but to kind of suggest, as a value, that part of what federalism means is giving states the authority to go off and do their own thing and that it's important for the federal system not to override the states when that's not necessary. So in keeping with those values of federalism courts that look at these types of issues are going to be looking very carefully so the the legal language for the type of question this is -- if it's a question of preemption -- does the federal law preempt whatever the state law issue is -- and there are different types of preemption -- but you know one of them is conflict preemption and that kind of encapsulates what -- you know more broadly speaking what it is that the courts are trying to do which is to figure out: is there a direct conflict here and if so the federal law overrides. But if there isn't that they need to live in -- in peaceful coexistence right. So that's part of what the courts are trying to do: figure out whether there actually is a conflict that would invoke the Supremacy Clause or not. So let me give you a little talk on a different subject. Got a couple minutes here. So we've already had our first cold-call -- well done. And I I think some of you could be approaching the next few days in the next year with some amount of anxiety and some of you aren't and all of that is okay. So you're going to get a lot of advice in the next few days and I think one thing about that advice -- if there's one piece of advice I could -- I could give it would be know yourself and think about which parts of this advice really speak to you and which ones you can leave behind because some of you guys are going to get pep talks of: you can do it, you can do it and your -- and what you actually need is something more like: you know, don't blow this off. Or some of you are going to get: don't blow this off and what you need is: you're taking this too seriously -- you need to give yourself a break, right? And only you can kind of know where you are. I think probably most of you are in this space where if I say you can do it, that's them -- that's the message you need to hear. So I'm going to spend a little bit of time on that message -- just a little bit so, um -- I am a graduate of this law school. I literally sat where you're sitting when I started law school and I think there's something that I wish that I had known which is this is what you're about to embark on. It is an engagement in learning a new language and I want you to think back to other times that you've learned a new language including one you can't remember: when you actually learn to speak for the first time -- where you didn't know what you were doing. And you couldn't read guide books to tell you how to do it and what you did was babble and play and figure it out by going along and I think a lot of you who've had foreign language experience know that getting in there and doing it is a much better way of learning than trying to learn kind of the theory of it or reading textbooks that tell you how. To learn a foreign language you got to go in there and do it. It's the type of fluency and if the -- if the language -- if the language analogies don't work for you I also think it has analogies in on the physical side of things where when you learn to walk, when you learn to ride a bike, when you learn to play a sport you got in there and did it and you didn't beat yourself up that you didn't already know how to do it because the whole point is you're learning how to do it. If you went to a personal trainer and they asked you to do something, you said "I'm done, I didn't even break a sweat," you wouldn't then say good workout. You'd think I need something more challenging, right? I need to sweat at this. The whole point of being here is to sweat -- is to -- is to break new ground, is to work hard in the development of new skills that can be very hard because you're all coming from places where you've accomplished very much and you have a certain level of expertise and things that you've done before -- that de-skilling process of I'm not sure that I know how to do this -- I'm worried that I won't look good when I do this -- I'm worried that I won't look like I already have it figured out -- guess what, you're not supposed to have already had it figured out. It would be a waste of your time and money if you already knew everything there was to know about the law and you came here and said "Yep, know it already." So what I'm asking for you guys is to give yourself a break in this learning process and recognize it for what it is. It's the same as going to the personal trainer, going to the gym and breaking a sweat. It's the same as getting in there and messing around when you're learning a new language. Sometimes you just have to learn by doing it and I think particularly in this first semester when there's a lot of anxiety about -- "I don't know what I'm doing" -- it can kind of shut down that experimental side of you. You feel like "I want to do it the most efficiently. I want to already be there. I want to know what it is." It's a process and partly it's a process that you -- that you learn by not doing it the most efficiently. By figuring out for yourself how it is you want to read your assignments and how it is you want to prepare for exams. You just got to get in there and do it and I think it can also be really helpful if -- if you talk to each other about that -- if you're not quiet about the process you're going through -- if you're just open about this is where I am in my process -- because you guys can be a great support to each other. Last thing I want to say: a few years ago we were out with my husband and kids. We got together with some friends at a pool and they have little kids, we have little kids -- and they said, "look our son learned to swim this summer" and he was in the pool and he was kind of suspended in mid water, you know, sort of paddling, but he was just like in the water right like in the water. I thought well you know he's not sinking but he's not really swimming either because if he keeps doing this he's gonna drown, right? He couldn't get his head up enough to breathe. And I thought you know there's a metaphor in there if you can feel like you're going through the motions and you can feel like I'm not sinking but if you're not giving yourself enough space to be able to breathe you're still going to wind up at the bottom of the pool so you got to take care of yourself during this. You've got to take breaths, you got to be able to come up for air. if you think I've figured it out but your system does not allow you to breathe then you've still got some more figuring out to do because it's got to be sustainable. You're going into a career that can put a lot of demands on you and it's up to you to figure out how to do that in a way that still gives you air, that still gives you what you need in life. Because I think all of you can come out of here, you know doing the strokes and breathing at the same time and if you need help with that talk to each other and talk to us about that. Very best of luck. Glad that you're here and I'll see you again soon.