Civil Law: Structures and Procedures
Grant H. Morris
University of San Diego, School of Law - Professor of Law Emeritus
INTERNATIONAL HANDBOOK ON PSYCHOPATHIC DISORDERS AND THE LAW, Alan Felthous, M.D. & Henning Sass, M.D., eds., John Wiley & Sons, Vol. 2, Ch. 1, 2008
San Diego Legal Studies Paper No. 08-009
This chapter introduces psychiatrists, psychologists and other non-law trained readers to law and law making in the United States using examples that demonstrate how various legal principles are applied to issues involving persons with psychopathic disorders. The chapter begins with a discussion of government in the United States as established by the federal Constitution. The roles of the executive, legislative, and judicial branches of government are presented as is the concept of federalism and the role of state governments. The Americans with Disabilities Act and its application to persons with psychopathic disorders is presented to illustrate the roles of the various branches of government in enacting, administering, and interpreting legislation. Important provisions of the United States Constitution are discussed, including the Due Process clause, the Equal Protection Clause, and the Bill of Rights. In discussing the Due Process Clause, the chapter contrasts the burden of proof used in civil cases with the burden of proof in criminal cases, using the following examples: involuntary civil commitment of mentally disordered persons, civil commitment of sexual predators, and the establishment of mental health conservatorships. In discussing the Equal Protection Clause, the chapter uses the following examples: civil commitment of mentally ill convicts at the expiration of their term of imprisonment, commitment of criminal defendants who are mentally incompetent to stand trial, and the applicability of the informed consent doctrine to the treatment of involuntarily committed mental patients. The role of courts in making law in the United States is discussed. Subtopics include the concept of the common law, precedent, stare decisis, holding and dictum, and judicial supremacy in interpreting the Constitution and statutes. The chapter concludes by comparing the common law system used in the United States with the civil code system used in continental European countries.
Keywords: law and lawmaking in the United States, the structure of american government, judicial decisionmaking
JEL Classification: K4, K40, K1, K10Accepted Paper Series
Date posted: February 6, 2008
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