Transcript Chapter 001 - Legal, Business, & E

CHAPTER 1
LEGAL HERITAGE AND
THE INFORMATION AGE
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WHAT IS LAW?
Law consists of rules that regulate
conduct of individuals, businesses, and
other organizations within society.
It is intended to protect persons and
their property from unwanted
interference from others. The law forbids
persons from engaging in certain
undesirable activities.
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Definition of Law
• A body of rules of action or conduct
prescribed by the controlling
authority, and having binding legal
force.
• That which must be obeyed and
followed by citizens subject to
sanctions or legal consequences.
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Functions of Law
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Keeping the peace
Shaping moral standards
Promoting social justice
Maintaining the status quo
Facilitating orderly change
Facilitating planning
Providing a basis for compromise
Maximizing individual freedom
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Functions of Law
(continued)
• Facilitating planning
– e.g., well-designed commercial laws allow
businesses to plan their activities, allocate their
resources, and assess their risks
• Maximizing individual freedom
– e.g., the rights of freedom of speech, religion, and
association granted by the First Amendment to
the U.S. Constitution
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Qualities of Law
• Fairness
– The American legal system is one of the most
comprehensive, fair, and democratic systems
of law ever developed and enforced.
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Qualities of Law (continued)
• Flexibility
– U.S. law evolves and changes along with the
norms of society, technology, and the growth
and expansion of commerce in the U.S. and
the world.
• E.g., Brown v. Board of Education
• E.g., new laws on cybercrimes and cybertorts
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Jurisprudence:
The philosophy or
science of the law
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Schools of Jurisprudential Thought
Natural Law
School
Historical
School
Analytical School
Sociological
School
Law and
Economics
School
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Critical Legal
Studies School
Command
School
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Schools of Jurisprudential Thought
(continued)
• Natural Law School
– Law is based on what is “correct.”
– Law should be based on morality and ethics.
• Historical School
– Law is an aggregate of social traditions and
customs.
• Analytical School
– Law is shaped by logic.
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Schools of Jurisprudential Thought
(continued)
• Sociological School
– Law is a means of achieving and advancing
certain sociological goals.
• Command School
– Law is a set of rules developed,
communicated, and enforced by the ruling
party.
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Schools of Jurisprudential Thought
(continued)
• Critical Legal Studies School
– Legal rules as unnecessary, with legal
disputes to be solved by applying arbitrary
rules based on fairness.
• Law and Economics School
– Promoting market efficiency as the central
concern of legal decision making.
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History of American Law
• English system of law generally adopted
• Became the foundation from which
American judges developed our common
law
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English Common Law
• Developed by judges who issued their
opinions when deciding cases.
• Principles announced in these cases
became precedent for later judges
deciding similar cases.
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English Common Law
(continued)
• Law Courts
• Uniform system of courts emphasizing form over
substance
• Granted only monetary damages
• Courts of Chancery (equity courts)
• Remedies shaped to fit each situation
• Merchant Courts
• Solved commercial disputes based on trade
practices
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Romano-Germanic
Civil Law System
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Roman Twelve Tables (450 B.C.)
Corpus Juris Civilis (A.D. 534)
Napoleonic Code (1804)
German Civil Code (1896)
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Civil Law System
(continued)
• Civil Code and parliamentary statutes that
expand and interpret it are the sole
sources of law in most civil law countries.
• Adjudication of a case is simply the
application of the code or the statutes to a
particular set of facts.
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In some civil law
countries, court
decisions do not
have the force of
law.
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Adoption of English Common Law
in America
• All states except Louisiana base their
legal systems on the English common
law.
• Louisiana bases its law on the civil law.
– Influence of its French heritage
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Adoption of English Common Law in
America (continued)
• In the U.S., law, equity, and merchant courts
have been merged.
– Most U.S. courts permit the aggrieved party to
seek both law and equitable orders and
remedies.
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Sources of Law in the U.S.
Constitutions
Codified Law
Treaties
Executive
Orders
Judicial
Decisions
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Agency Rules
& Regulations
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Sources of Law in the U.S. (continued)
• U.S. Constitution
• “Supreme law of the land”
• Established structure of federal government
–Legislative branch
–Executive branch
–Judicial branch
• Enumerates federal powers
• Reserves all other powers to states
• State Constitutions
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Sources of Law in the U.S. (continued)
• Treaties
– The President, with the advice and consent of
the Senate, may enter into treaties with
foreign governments.
– Congress passes statutes to fulfill treaty
requirements.
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Sources of Law in the U.S. (continued)
• Codified law: Statutes and ordinances
– The U.S. Congress enacts federal statutes.
– State legislatures enact state statutes.
– Municipalities and local government bodies
enact ordinances.
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Sources of Law in the U.S. (continued)
• Executive orders
– Issued by the president and state
governors
• E.g., order requiring federal agencies to buy
more hybrid vehicles
• E.g., order allowing oil drilling on federal land
– Power derived from express delegation
from legislative branch or implied from
constitutional powers
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Sources of Law in the U.S. (continued)
• Regulations and Orders of
Administrative Agencies
– Empowered by legislative and executive
branches of government
• Adopt rules and regulations
• Enforce statutes
• Hear and decide disputes
– Many agencies regulate business
• E.g., SEC, FTC, DOT
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Sources of Law in the U.S.
(continued)
• Judicial decisions
– Courts decide controversies.
– Judicial decisions usually state the rationale
used by the court in reaching that decision.
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Doctrine of Stare Decisis
• Based on the common law tradition, past
court decisions become precedent for
deciding future cases.
• Lower courts follow the precedent
established by higher courts.
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Doctrine of Stare Decisis (continued)
• Both federal and state courts follow the
precedents established by U.S. Supreme Court
decisions.
• Courts in one jurisdiction are not bound by
precedent of another jurisdiction, but may look
at it for guidance.
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Doctrine of Stare Decisis (continued)
• Purpose
– Uniformity
– Efficiency
– Predictability
– Flexibility (power to depart from or change
precedent when warranted)
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Priority of Law in the U.S.
• The U.S. Constitution and treaties take
precedence over all other laws.
• Federal statutes take precedence over
federal regulations.
• Valid federal law takes precedence over
conflicting state or local law.
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Priority of Law in the U.S. (continued)
• State constitutions rank as the
highest state law.
• State statutes take precedence over
state regulations.
• Valid state law takes precedence
over local laws.
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