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Chapter 1

Introduction to Law

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TEXT

Carper/McKinsey/Meiners/Ringleb/Edwards, Introduction to Law for Business

Not Kubasek, The Legal Environment of Business

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Quote

“No law perfectly suits the convenience of every member of the community: the only consideration is, whether upon the whole it be profitable to the greater part.” Livy, History of Rome, c. 10 B.C.

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U.S. Law is based on the English Common Law English common law derived its legitimacy from

experience and custom Influenced by Norman invasion of 1066 Kings Courts Chancellor courts (equity) Use of case law as precedent Second most common legal system in the world

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WHAT IS “LAW”?

Text: “a body of rules and conduct prescribed by controlling authority and having binding legal effect”

Prescribed by whom? Separation of Powers

Who determines whether a law has “binding legal effect”? Judicial Review

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Modern U.S. Common Law Federalism – Union of states under federal government The Constitution is the foundation of all U.S. laws Doctrine of stare decisis or precedent

Mandate that Inferior courts follow decisions of superior courts

Provides stability and predictability to legal system Alternate references for term common law

Case law Court law Unwritten law

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Stare Decisis Latin term meaning “To stand by decided cases.” Treating these cases as “Precedent.” Application of doctrine in typical situations

Variables to consider when applying rule Jurisdiction issues (Which court, Which State?) Identity or similarity of facts Currency

Change in cultural values Change in scientific knowledge

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THE LAW IS DYNAMIC

Examples: Affirmative Action: what impact will Fisher have? DOMA: enacted by controlling authority, but will it have binding

legal effect? Changes caused by societal, cultural and economic changes:

The role of women Plessy v. Ferguson Discrimination against the LGBT community Intellectual property law International law Environmental law

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Lawmaking by other than courts Legislators

Federal & State – Doctrine of Supremacy Statutes Codes Ordinances Treaties

Executive Branch Veto Executive orders Treaties Administrative agencies

People Initiatives

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Classifications & Categories of Law Federal State

Civil Criminal

Private Public

International Domestic

Procedural Substantive

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Federal v. State Law Federal law

National in origin Consistent with constitution Supreme over state law Exclusive in International affairs Multiple sources of federal law

State Law Ordinary affairs of citizens including most contract,

tort, and criminal law Multiple sources of state law

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Civil v. Criminal Law Civil law: Body of law directly concerning the

rights and duties between parties

Criminal law: Body of law dealing with crimes and their punishment

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Contrast Between Civil And Criminal Law

Civil Criminal

Nature Rights and duties of individuals to each other

Wrongs against society as a whole

Person Initiating Action Plaintiff or person injured Either federal, state, or local prosecutor

Burden of Proof in Trial Preponderance of the evidence Beyond a reasonable doubt

Result sought Money damages or equitable remedy

Death, fine or imprisonment

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Private v. Public Law Public law: Body of law directly concerned

with public rights and obligations

Private law: Body of law regulating rights and duties existing between private persons. The rights and duties are created by the affected parties

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International v. Domestic Law International law: Governing relations

between sovereign nations

Domestic law: Law of a particular sovereign nation

Challenges include international trade, travel, and violence given the limited ability to enforce international law

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Procedural Law v. Substantive

Procedural law: General principles and detailed rules that define the methods of administering the substantive law

Substantive law: General principles and detailed rules defining legal rights and duties

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THE IMPACT OF STARE DECISIS

If the facts of a new case are essentially identical to a case previously decided by an appellate court, the inferior court must follow the old decision

If the new case is somewhat different, but the underlying rationale and policy of the old case makes sense, extend the previous ruling to the new facts.

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IMPACT OF STARE DECISIS, CONT’D

If the new case is not the same and the underlying rationale of the old case doesn’t make sense in this new case, distinguish the new case from the old one and limit the rule from the old case

If the new case is essentially identical to the old case, but the underlying rule no longer makes sense, overrule the previous precedent.

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EXAMPLES OF OVERRULED CASES

Plessy v. Ferguson Brown v. Board of Education Citizens United Potentially Fisher v. University of Texas

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Relationship Between Law and Ethics Legal rules and rules of ethics serve different goals

Is an action legal? Is an action morally or ethically correct?

Law is imperfect –exclusive compliance with the law may fall short of correct behavior. It is possible to comply with the letter of the law and still not act in a moral manner

What Are Ethics? Ethics is study of the general nature of morals and moral choices

to be made by the individual in relationships with others Rules or standards governing the conduct of the member of a

profession, e.g., the legal profession Standards of fair and honest conduct

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Ethics Terms Morals: Relating to whether conduct is right or

wrong, generally similar to ethics although used in a more personal sense

Norms: Standards of behavior Normative Judgments: Value judgments as to right

and wrong Non-normative: Statements of fact which are value

neutral

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How do we determine what is a “right” decision? Negotiations Westside Federal layoffs

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Is Legal Compliance Sufficient?

Kitty Genovese Case

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Ethical standards and decision making Duty-based ethics: Actions are morally correct if they

comply with existing obligations owed another or ourselves Often religious based Kantian ethics

Utilitarianism: Determining right conduct is based on consequences; that the purpose of the behavior should be the greatest happiness of the greatest number people

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Eric J. v. Betty M.

Who is the appellant? Respondent? Who was the plaintiff? Defendant? What precedent did the appellant cite? How did the court distinguish the Soldano

case? How do you feel about the decision? Did the

court promote ethical conduct? Why or why not?

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Moral Reasoning A rational thought process directed at testing

whether action is right or wrong. The conclusion is a determination of moral responsibility or culpability

Deductive logic A method of logical reasoning from two or more

propositions to a conclusion. Inferences are drawn from a general premise to a specific premise. The conclusion is valid if the proposition on which the conclusion is based is true

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Using Court Cases Federal v. State cases Trial v. Appellate court cases Citation – manner in which court cases are identified, 76

Cal. App. 4th 715, 90 Cal.Rptr.2d. 4 (California, 1999)] 76 - volume Cal. App. – name of the reporter 4th – edition of reporter 715 – page where case can be found 90 Cal.Rptr.2d. 4 – parallel citation to another reporter California – state in which decision was rendered 1999 – year the case was decided Additional example: 77 W. 2d 345 (1969)

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Using Court Cases -Terminology

Unanimous opinion: A judicial decision with complete agreement by all judges

Majority opinion: A written opinion by a judge outlining the views of the majority of the judges of the court deciding the case

Concurring opinion: A written opinion wherein a judge agrees (concurs) with the result reached by another judge, but for different reasons from those stated by the other judge

Dissenting opinion: A written opinion by a judge or judges who vote contrary to the majority opinion and holding of the court

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Terminology, Cont’d

Appellant/Respondent Petitioner/Respondent Plaintiff/Defendant Judges/Justices

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