Assignment:
1. Schools of Jurisprudential Thought
A. The judge function is not to make the laws but to interpret and apply them. The court plays a significant role in defining what the law is. Judges have some flexibility in interpreting and applying the law, in which each judge's unique personality, legal philosophy, set of values, and intellectual attributes necessarily frame the judicial decision-making process to some extent.
B. The Natural Law School is the oldest and one of the most significant schools of legal though. It is a system of moral and ethical principles that are inherent in human nature and that people can discover through the use of their natural intelligence, or reason. According to Aristotle, natural law applies universally to all humankind.
C. The Positivist School is a school of thought that can be no higher law than a nation's positive law or national law, the written law of a given society at a particular point in time. In contrast to natural law, positive law does not believe in "natural rights", but rather human rights exist solely because of laws.
D. The Historical School emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be
E. Legal Realism is popular in the 1920s and 1930s that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning. Legal realists generally advocated a less abstract and more realistic approach to the law, and the circumstances in which transactions take place.
2. Business Activities and the Legal Environment
A. Laws and government regulations affect virtually all business activities and basic knowledge of the laws and regulations governing these activities is beneficial - if not essential. Therefore, a study of business law necessarily involves an ethical dimension.
B. There are many areas of the law that may affect a single business decision making. Compartmentalizing a law promotes conceptual clarity, but it does not indicate the extent to which a number of different laws may apply to just one transaction. If any dispute cannot be resolved amicably, then the laws and the rules concerning courts and court procedures can spell out the steps of the lawsuit.
C. Ethics and business decision making is an important part of business decision because ethics constitutes right or wrong behavior. Business decision makers need to consider not just whether decision is profitable and legal but also whether it is ethical.
3. Sources of American Law
A. There are two main sources of American Law -- primary sources that establish the law and the secondary sources that summarize and clarify the primary sources of law. Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law.
B. Constitutional Law is a law that is expressed in the U.S. Constitution and the state constitutions. The U.S. Constitution is the supreme law of the land. State constitutions are supreme within state borders to the extent that they do not violate a clause of the U.S. Constitution or a federal law.
1. Uniform Laws (Statutory Laws) are statutes and ordinances created by federal, state, and local legislature and governing bodies. None of these laws may violate the U.S. Constitution or the relevant state constitution. Uniform laws are model laws created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If the state legislature adopts a uniform law, it becomes part of the statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.
2. The Uniform Commercial Law facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transaction, which assures businesspersons that their contracts, if validly entered into, normally will be enforced.
C. Administrative Laws are rules and decisions of administrative agencies from the federal, state, or local agencies to perform a specific function. Administrative law and procedures constitute a dominant element in the regulatory environment of business.
1. Federal (Executive) agencies are at the national level and are subject to the authority of the president, who has the power to appoint and remove officers of federal agencies. Independent regulatory agencies (FCC, FTC, SEC, etc.) serve for fixed terms and cannot be removed by the president without just cause.
2. State and local agencies are parallel with federal agency regulations. Federal statutes take precedence over conflicting state statutes, and federal agency regulations take precedence over conflicting state regulations.
D. Case laws and common law doctrines are judge-made law, including interpretations of constitutional provisions, of statutes enacted b legislatures, and of regulations created by administrative agencies.
4. The Common Law Tradition
A. The common law tradition was a body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
B. Early English Courts is the origin of the English legal system and the U.S. legal system, too.
1. Courts of Law and Remedies at Law are courts in which the only remedies that could be granted were things of value, such as money damages. In the early English king's courts, courts of law were distinct from courts of equity. If a remedy is available in a court of law, money damages are awarded.
2. Courts of equity and remedies in equity are branch of law founded for justice and fair dealing that seek to supply a remedy when no adequate remedy at law is available. The remedies granted by the equity courts are called remedies in equity or equitable remedies. These remedies include specific performance such ordering a party to perform an agreement to cease engaging in a specific activity or to undo some wring or injury and rescission the cancellation of a contractual obligation. For example, you want to court to grant the equitable remedy of specific performance because money damages are inadequate.
3. Equitable maxims are general propositions or principles of law that have to do with fairness or equity. The equitable doctrine of laches (lax or negligent) can be used as defense, which encourage people to bring lawsuits while the evidence was fresh.
C. Legal and equitable remedies today can be requested at both legal and equitable remedies in the same action, and the trial court judge may grant either or both form or relief. This is because during the 19th century, most states in the U.S. adopted rules of procedure that combined courts of law and equity although some state like Arkansas, still retain the distinction.
D. The doctrine of stare decisis helps the courts to be more efficient, because if other courts have carefully analyzed a similar case, their legal reasoning and opinions can serve as guides. Stare decisis also makes the law more stable and predictable.
1. Stare decisis is a Latin phrase meaning "to stand on decided cases". It's a common law doctrine under which judges are obligated to follow the precedents established in prior decisions. The case precedent is a decision that furnished an en example or authority for deciding subsequent cases involving similar legal principles or facts. Today, cases are published or reported in volumes called reporters or reports.
2. The practice of deciding new cases with reference to former decisions, or precedents, became a cornerstone of the English and American judicial systems.
3. When there are no precedent cases it is called cases of first impression. For example, transactions conducted via the Internet have presented new problems for the courts and they have to decide on a case-by-case basis, what rules to apply. In deciding cases of first impression, court consider the number of factors, such as persuasive authorities, legal principles, and policies underlying previous court decisions or existing statutes, fairness, social values and customs, public policy and data and concepts drawn from the social sciences.
E. Legal reasoning is a process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases.
1. The basic steps in legal reasoning are the IRAC method (issue, rule, application, and conclusion).
• What are they key facts and issues?
• What rules of law apply to the case?
• How do the rules of law apply to the particular facts and circumstances of this case?
• What conclusion should be drawn?
2. There are 3 common forms of reasoning when judges applying the law to the facts of a particular case.
• Deductive reasoning is sometimes called syllogistic reasoning because it employs a syllogism, a logical relationship involving a major premise, a minor premise, and a conclusion.
• Linear reasoning is commonly employed because it proceeds from one point to another, with the final point being the conclusion. An analogy will help make this form of reasoning clear.
• Reasoning by analogy is to compare the facts in the case at hand to the facts in other cases and to the extent that the patterns are similar to apply the same rule of law to the present case.
F. In most situations involving a legal controversy, there is no single correct result. Good arguments can often be made to support either side of a legal controversy. In fact, even though in some cases, the weight of the law would seem to favor one party's position, judges, through creative legal reasoning, have found ways to rule in favor of the other party in the interests of preventing injustice.
5. The Common Law Today
A. The common law today continues to be applied throughout the U.S. Common law doctrines and principles govern all areas not covered by statutory or administrative law.
B. There is a significant continuing importance of the common law because it interplays with the statutory law. In interpreting statutory law, judges often rely on the common law as a guide to what the legislation intended.
C. The Restatements of the Law generally summarize the common law rules followed by most states including areas of contracts, torts, agency, trusts, property, restitution, security, judgments, and conflict of laws. The Restatements do not in themselves have the force of law but are an important source of legal analysis and opinion on which judges often rely in making their decisions.
6. Classification of Law
A. A classification of law has been devised because the body of law is so large. One classification system divides law into substantive law and procedural law. Substantive law consists of all laws that define, describe, regulate, and create legal rights and obligations. Procedural law consists of all laws that delineate the methods of enforcing the rights established by substantive law. Other classification system divide law into federal aw and state law, private law (dealing with relationships between private parties) and public law (addressing the relationship between persons and their governments), national law and international law, etc.
B. Civil law is a branch of law dealing with the definition and enforcement of all private and public rights, as opposed to criminal matter. In contrast, criminal law defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands redress.
C. Cyberlaw refers to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
7. How to Find Primary Sources of Law
A. A citation to primary sources of law is a reference to a publication in which a legal authority such as statute or a court decision or other source can be found.
B. When statutory and administrative laws are passed, they are collected in a publication called United States Statutes at Large. Laws that are codified are compiled by subject.
1. The United State Code (U.S.C.) arranges all existing federal laws of a public and permanent nature by subject. A citation to the U.S.C. includes title and section numbers. (Example: 15 U.S.C. Section 1 means that the statue can be found in Section 1 of Title 15.) "Section" may also be designated by the symbol §, and "Sections," §§. Sometimes a citation includes the abbreviation et seq (et sequitur in Latin), which means "and the following" and when used in a citation, it refers to sections that concern the same subject as the numbered section and follow it in sequence.
2. State codes follow the U.S.C. pattern of arranging law by subject called codes, revisions, compilations, consolidations, general statutes, or statutes. In some codes, subjects are designated by number or by name.
3. Administrative rules and regulations are initially published in the Federal Register, a daily publication of the U.S. government and later incorporated into the Codes of Federal Regulations (C.F.R.)
C. There are two types of court in the U.S. -- federal courts and state courts - both consist of several levels or tiers of court.
1. The trial court is a court in which trials are held and testimony taken. Decisions from a trial court can be appealed to a higher court, which commonly would be an intermediate court of appeals or an appellate court. The appellate court is a court having appellate jurisdiction. Each state court system has at least one level of appellate courts. In the federal court system, the appellate courts are the circuit courts of appeals (intermediate appellate courts) and the U.S. Supreme Court (the highest appellate court in the federal system).
2. Most state trial court decisions are not published but decisions but are merely filed in the office of the clerk of the court where the decisions are available for public inspection. Written decisions of the appellate or reviewing courts are published and distribution in volumes called reports or reporters, which are numbered consecutively.
3. Federal court decisions are published unofficially in West's Federal Supplement (F.Supp or F.Supp.2d). The official edition of all decisions of the U.S. Supreme Court for which there are written opinions is the U.S. Reports, which is published by the federal government.
8. How to Read and Understand Case Law
A. It is essential that businesspersons know how to read and understand case law because the decision made by the courts establish the boundaries of the law as it applies to virtually all business relationships.
B. The case title (Adam v. Jones) indicates the names of the parties to the lawsuit. The v. stands for versus or "against" The plaintiff is the person who filed the lawsuit and the respondent is the defendant. It is important to carefully read the facts of each case to identify the parties.
C. Legal terminologies are terms, phrases, and abbreviations that are used in court opinions and legal publications.
1. Parties to lawsuits - the party initiating a lawsuit is referred to as the plaintiff or petitioner, depending on the nature of the action and the party against whom a lawsuit is brought is the defendant or respondent. When a case is appealed from the original court or jurisdiction to another court or jurisdiction, the party appealing the case is the appellant. The appellee is the party against whom the appeal is taken.
2. The terms judge and justice are usually synonymous and represent 2 designations given to judges in various courts. Justice is the formal title given to judges of appellate courts.
3. Court decisions are reached by reviewing courts or explained in written opinions. The opinion includes the court's reasons for its decision, the rules of law that apply and the judgment.
• Unanimous opinion is when all judges or justices unanimously agree on an opinion.
• Majority opinion is when there is not a unanimous opinion and the majority opinion outlines the view supported by the majority of the judges deciding the case.
• Concurring opinion is when a judge agrees or concurs wit the majority's decision but for different reason.
• A dissenting opinion presents the views on one or more judges who disagree with the majority's decision. The dissenting opinion is important because it may form the basis of the arguments used years later in overruling the precedential majority opinion.
• Per curiam is a Latin phrase meaning "of the court". In per curiam opinions, there is no indication of which justice authored the opinion.
• En banc is a French term for ‘in the bench', generally all of the judges "sitting on the bench" of that court review the case.