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OfCounsel.org provides learners with direct insight into certain fundamentals of American jurisprudence and English common law. Resources cover most core topics such as property, crimes, torts, contracts, and constitutional law.
Subjects of Law
Criminal Law
Property Law
Property Law
A crime is a harm to society made punishable by law.
Contracts
Reading & Writing Law
Constitutional Law
A contract is a mutual agreement with consideration.
Constitutional Law
Reading & Writing Law
Constitutional Law
A constitution is a sovereign‘s fundamental, core law.
Reading & Writing Law
Reading & Writing Law
Reading & Writing Law
Legal research includes statutes, rules, and caselaw.
Criminal Law
Basics of Criminal Law
A crime is an offense against society (as opposed to the individual). A leading idea is that the law punishes certain conduct to keep people in a society from engaging in that conduct again. Religion, morals, social norms, and experience help shape what activity local, state, and federal governments deem criminal—some being malum in se (evil or morally wrong) and others malum prohibitum (a regulatory wrong, i.e., “wrong” if for no other reason than because the law says so).
Most crimes consist of three constituents (1) a state of mind (mens rea), (2) an act (actus reus), and (3) a result; the exceptions are “inchoate” crimes like conspiracy, which do not require a result. Causation generally requires that a defendant’s conduct be both a but-for and proximate cause of the resulting harm, meaning the harm usually must be directly traceable to the defendant’s actions and within the realm of reasonable foreseeability. In other words, criminal liability depends on establishing a causal nexus between culpable negligence and the unlawful killing.
For example, burglary is a centuries-old crime that had five basic elements at common law: (1) breaking and (2) entering (3) the dwelling house of another (4) during the nighttime (5) with the intent to commit a felony. If indicted, the government would have to prove each of these five elements beyond a reasonable doubt before the defendant may be considered guilty.
Are all homicides crimes? No, and not all malicious murders are punishable. Look at each term: A homicide is the killing of a human by another, but a criminal homicide is the killing of a human by another without justification or excuse. A justifiable homicide is one that the law authorizes (e.g., a military officer in combat). An excusable homicide is one that occurs under circumstances society determines the actor should not be held culpable (e.g., self-defense).
So what is murder? Murder is homicide with malice—which means (1) the actor has a "person-endangering" state of mind (mens rea) via the intent to kill or inflict serious bodily injury or is acting with a depraved heart (i.e., recklessly under circumstances showing an extreme indifference to the value of human life); AND (2) without justification or excuse. At common law, first-degree murder usually required proof of a state of mind (mens rea) that was willful (i.e., intent to kill), deliberate (i.e., acting with a cool mind capable of reflection), and premeditated (i.e., actor reflected on the pros/cons). Second-degree murder usually covered other types of murder with malice falling outside the first-degree category (e.g., depraved heart murder or extreme recklessness).
What about manslaughter? Manslaugther essentially is criminal homicide without malice. Definitions vary greatly among states. "Murder" might be mitigated to manslaughter by doctrines like the rule of provocation (i.e., "heat of passion"), unreasonable self-defense, or diminished capacity. Otherwise, "manslaughter" could mean the actor's state of mind (mens rea) was not reckless to the level of having a "depraved heart" but nonetheless punishable because the actor has a subjective awareness of a substantial risk of death or serious bodily injury (compared to the "extreme" indifference to value of human life that consitutes depraved heart (second-degree) murder). Criminal negligence may also be punished as manslaugther when the actor should know of the substantial risk of death or serious bodily injury (i.e., an objective test instead of subjective awareness). criminal law
Tort Law
Examples of Torts
The word “tort” comes from Latin “twisted” and French “wrong.” The word means a civil (as opposed to criminal) wrong; the law makes a person responsible (or “liable”) for the harm caused to another individual. (To compare, criminal law punishes a person for the harm caused to society as a whole, in theory.)
One of the most common torts is negligence, but many other kinds of torts exist: slander, false imprisonment, intentional infliction of emotional distress. Torts usually are categorized as intentional torts, negligence (carelessness but not intentional), and strict liability.
An example of an intentional tort is battery: at common law, the elements to prove battery were (1) a voluntary act with (2) the intent to cause (3) harmful or offensive and contact (which does, in fact, result) that offends a reasonable person’s sense of dignity.
In the next category, negligence at common law required proof of a person being “negligent” in a situation society expected responsibility: (1) a duty, (2) breach of that duty, (3) causation (cause in fact, which may be called “but for causation,” and proximate cause, which may be referred to a limitation the law places on the scope of causation), and (4) damages.
Strict liability involved a person engaging in activities that were inherently dangerous such that any harm caused to another person could result in responsibility regardless of the person’s intentions or good efforts (e.g., keeping wild rattlesnakes).
Resources
Property Law
Defining Property
Property is our oldest body of law. A property right traditionally has been viewed as the right of a person to use and exclude something from the rest of the world, if so desired. But property law is much more nuanced. Since before America’s inception, legal minds viewed property not just as a “thing,” but as a collection of rights that allowed resources (tangible and nontangible) to be allocated however society shaped its law to allocate them.
For example, the United State Constitution requires that any federal law Congress passes to give people copyright protection must be a law that promotes the “progress of science and the useful arts.” But regarding excludable, rival goods (like land or water), the common law began over 800 years ago in England to protect the use.
Civil actions at law or causes in equity might involve trespass, nuisance, or adverse possession. The acquisition of property rights includes areas like first possession, discovery, creation, and accession. Other laws facilitate market transactions like licenses, easements, or bailments. The English system of freehold and nonfreehold estates remains fairly prevalent, with absolute ownership categorized as “fee simple” and the others as either defeasible fees or finite estates.
Resources
Contract Law
Everyday Deals
Contract law is about promises the law will enforce. A contract is an agreement between two or more parties that creates legal obligations. These can be written or spoken, though written contracts are usually easier to prove in court. To be legally binding, a contract typically needs (1) an offer, (2) acceptance of that offer, and (3) something of value exchanged (called “consideration”).
For example, if you agree to mow someone’s lawn for $50, and she agrees, that’s a contract—even if it’s only a handshake deal. But if one side doesn’t follow through, the other may sue for “breach of contract.” Remedies might include money damages or, in some cases, a court order forcing someone to do—or stop doing—something. Everyday contracts show up in leases, cell phone agreements, even when you click “I agree” online. Contract law helps people trust that their agreements will actually mean something if things go wrong.
Resources
Constitutional Law
Big Picture
Constitutional law deals with the rules that form the foundation of government and protect individual rights. In the U.S., this comes from the federal Constitution, especially the Bill of Rights, and each State’s constitution. The bedrock, written provisions shapes what governments can and cannot do and ensures checks and balances between the branches of government.
A famous example of constitutional law in action is the First Amendment, which protects freedom of speech and religion. Courts also interpret the Constitution to determine what’s fair under the law—like the right to counsel under the Sixth Amendment or protection from unlawful searches under the Fourth Amendment.
Some constitutional questions affect everyday life, like whether police need a warrant or what counts as discrimination. Others involve big-picture debates, like the limits of power. The Constitution is over 230 years old, and courts still use it daily to decide what’s legal and what’s not.