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Chapter One Introduction to Law 1. Definitions of Law a. Legislative Law – Laws, including state/federal constitutions, passed by legislative bodies. b. Judicial Pronouncements – Statements made by courts interpreting statutes or based on common law principles. c. Procedural Law – (usually product of legislative branch) Aimed at determining how lawsuits are handled in courts. i. Substantive Law- First two of the above laws which are meant to decide controversies. ii. The third (Procedural Law) is the machinery where substantive law is given effect and applied to resolve controversy 2. Classifications of Legal Subjects Public Law Private Law Law that generally affects the public Pertaining to the relationships between (constitutional, administrative, criminal) individuals (contracts, torts, property) a. Constitutional Law – Concerns itself with the rights, powers, and duties of federal and state governments under the constitution b. Administrative Law – Concerned with the multitude of administrative agencies, such as the FTC (Federal Trade Commission) or the NLRB. c. Criminal Law – Statutes that forbid certain conduct as being detrimental to the welfare of the state or the people, provides punishment for violations d. Contracts – Subdivided into the subjects of sales, commercial paper, agency, and business organizations e. Tort – A wrong committed by one person against another or another’s property f. Property – Almost contract law, but not, as it covers the basic ingredient in our economic system Sources of Law 3. Court Decisions a. The system on relying on the judiciary is referred to as common law b. Relying on codification, reducing the law to statutes, as the main source of law is called civil-law 4. Basic Constitutional Principles a. Separation of Powers – Both state and federal constitutions must provide for three branches, executive, legislative, and judicial. Each branch will perform its powers and not infringe on another’s. i. Vertical Aspects – There is separation between state and federal powers, each performing its own functions ii. Horizontal Aspects – Each branch serves to check the others b. Judicial Review – Established by Marbury v. Madison, the courts may review the actions of other branches of government and determine legality 5. Legislation a. Legislation enacted by congress or by a state legislature is called a statute b. Laws passed by local governments are called ordinances c. Compilations of legislation at all levels of government are called codes


6. Interpreting legislation a. It is not possible to express the legislative intent in words that will mean the same thing to everyone; statutes are, by their nature, frequently vague b. Interpretation is often complex due to the legislative body having had no intent on addressing the issue in question i. Legislative history, or reviewing hearings, debates, and statements, may allow for a more accurate interpretation c. When a judge interprets legislative intent, they assume that tax laws and criminal statutes are narrowly construed. i. Remedial statutes (those creating a judicial solution on behalf of one person at the expense of another) are to be liberally construed so that the statute will be effective in correcting that type of dispute ii. Context and Usual Meaning mean that technical words have a reassigned and usual meaning to take when interpreting 7. Uniform State Laws a. Since each state and the federal government have a constitution, there are 51 legal systems; legal systems are not all uniform. There are two methods for achieving uniformity in business law (below) i. Having federal legislation govern business law ii. Having states’ legislatures adopt uniform laws concerning at least certain phrases of business transactions b. Most significant development for uniform business law is the Uniform Commercial Code. Case Law 8. Stare Decisis a. Means, “to stand by decisions and not to disturb what is settled,� once a case has established precedent, it should be followed in future cases b. Contrast to Res Judicata, which means that the matter has been decided and that the losing party cannot ask a court to decide the dispute. c. Stare Decisis affects parties who are not involved in the lawsuit, but res judicata applies only to the parties involved 9. Problems Inherent in Case Law a. The unbelievably large volume of judicial decisions places the law beyond most everyone, including most lawyers. b. Conflicting cases are often cited to the court. c. Many cases today involve rulings where there have been no prior decision, these rulings are deemed legislative in character because it creates a law d. Dicta are when courts make comments on matters not necessary to the decision reached. It may be used if sound and just but will lack the force and are not a precedent that is required within stare decisis 10. Rejection of Precedence a. Judged, like legislatures, are subject to social forces and may issue reversals b. Courts reexamine precedents and adapt them to changing conditions under a doctrine known as constitutional relativity 11. Conflict of laws a. Several things should be recognized that cause conflict of laws i. Statutes and precedents vary from state to state


ii. Stare Decisis doesn’t require that one state recognize of another’s iii. Having a contract with more than one state b. Law applicable to tort is said to be the law of the state of place of injury i. A court sitting in state X would follow its own rules or procedure, but it would use the tort law of state Y if the injury occurred in Y c. The following are several rules used by courts on issues with contract law i. The law of the state where the contract was made ii. The law of the place of performance iii. “Grouping of Contracts” or “center of gravity” theory, which uses the law of the state most involved with the contract iv. The law of the state specified in the contract 12. Jurisprudence The study of philosophy of law a. Natural Law – There is a higher law or group of universal rules that should bind all human behavior. Moral principles are more prominent that other types of jurisprudential though b. Positice Law – There is not a necessary moral component to law, rather, the law is simply a command of government. These commands may be good or bad in terms of morality c. Legal Realism – Law is really the impact of decisions of those who administer the law, juries, judges, etc. A statute may be interpreted in a variety of ways by judges, and the law is what the judge rules. d. Sociological – The law should reflect social values, which may change over time Law and Ethics 13. Ethical Conduct a. Three areas of human action that dominates human action i. Free Choice – The free choices we are able to make ii. Obedience to the Unenforceable – Very broad area, the realm of kindliness and conscience, manners, ethics, and morals iii. Domain of Law – Basing behaviors at least partially on the law b. Ethics is divided into Duties (religious, philosophical, and social) and Outcomes (ends justify the means) c. Don’t be a complete d-bag 14. Interrelationship Between Law and Ethics a. Ethical standards are frequently enacted into law or used in court decisions because the law usually reflects society’s view of right and wrong b. Ethics addresses the rights and wrongs of morality, it is not a term used for good behavior


Study Guide 1  
Study Guide 1  

Chapter 1 Study Guide

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