copyright © 2011 - jeffrey pittman chapter 1 – business and its legal environment
TRANSCRIPT
Introduction
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The following slides are not intended to be a complete treatment of Chapter 1
Additional resources from the textbook authors are found at the textbook companion website
What is the Law?
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In a singular sense, law consists of mandatory rules promulgated by the government that regulate societal conduct
In a plural sense, law establishes how society is governed, allowing society to function
Jurisprudence
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The science or philosophy of law is jurisprudence
Jurisprudence deals with the question “What should be the law?" as opposed to the question “What is the law?”
Schools of Jurisprudential Thought
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There are multiple schools of jurisprudence, many not presented in the textbook
The textbook examines the following schools (see Concept Summary 1.1, p.4): Natural Law Positivist Historical Legal Realism
The Natural Law School
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Natural law denotes a system of moral principles that are inherent in human nature
The moral principles are usually identified through belief in God and a religious system, or through the application of human reason
For example, consider the Declaration of Independence
Declaration of Independence
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IN CONGRESS, JULY 4, 1776The unanimous Declaration of the thirteen united States of America
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
Martin Luther King
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The natural law school influenced the civil rights movement of the 1960s – as reflected by Martin Luther King's writings
The following letter excerpt was written after Reverend King lead peaceful civil disobedience against racial segregation in Birmingham, Alabama in 1963
Martin Luther King'sLetter from Birmingham Jail
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April 13, 1963MY DEAR FELLOW CLERGYMEN: While confined here in the Birmingham city
jail, I came across your recent statement calling my present activities "unwise and untimely." . . . I want to try to answer your statements in what I hope will be patient and reasonable terms
Martin Luther King'sLetter from Birmingham Jail
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You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: "How can you advocate breaking some laws and obeying others?". . . .
Martin Luther King'sLetter from Birmingham Jail
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The answer lies in the fact that there are two types of laws: just and unjust. Now, what is the difference between the two? . . . A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law
Martin Luther King'sLetter from Birmingham Jail
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We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal" . . .
Positive Law
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Analyze King’s last quote under positive law and legal realism, pages 3-4 in the textbook
Jurisprudence Question
Under the schools of jurisprudential thought, how would you analyze the following section from the California Constitution (a section under current court review)?
Cal. Const., Art. I § 7.5 (2010)§ 7.5. - Marriage validity limited to man
and womanOnly marriage between a man and a woman is
valid or recognized in California.
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Law & Business
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The reach of law into the business realm is extensive
One transaction may be affected by multiple laws
See exhibit 1-1, page 5
Sections 3, 4, & 5
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Sources of American LawThe Common Law Tradition
The Common Law Today
Sources of American Law
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At the federal level, the primary sources of law include the Constitution, federal statutes and regulations, and executive orders
At the state level, the same sources of law exist – a constitution, statutes, etc.
State courts also create law through the common law process, a power the federal government lacks
1st Tier - Law Sources – in Rank Order1st Tier - Law Sources – in Rank Order
2nd Tier - The Common Law Process2nd Tier - The Common Law Process
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1. US Constitution2. Federal Statutory
Law3. State Constitution4. State Statutory Law5. Local Law Above sources are
created by lawmakers and interpreted by courts – Stare Decisis is important regarding precedents
Stare Decisis, orOverruling
Precedent, orCreating First
PrecedentCommon law is
created by and found only in state court opinions
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The Legal Process - An Overview
Common Law
Our common law (or case law) originated in the laws of William the Conqueror (1027-1087, A.D.)
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Common Law
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Today, common law refers to court created rules in areas where constitutional and statutory rules are silent
Common law is only created by state courts, not federal courts, and each state is sovereign and supreme in its common law
Courts of LawCourts of Law Courts of EquityCourts of Equity
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Relief granted - usually money damages
Jury trial allowedTime to sue
governed by statutes of limitation
Relief granted - usually court orders (e.g., injunctions, orders of specific performance, etc.)
Jury trial not allowedTime to sue
governed by the doctrine of laches
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Distinctions Courts of Law - Courts of Equity
Stare Decisis
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Stare Decisis, where past court decisions become precedent for future cases, is the cornerstone of our American judicial system
Stare decisis is Latin for “let the decision stand”
Lower courts must follow the precedent established by higher courts, but higher courts have the power to overturn their own precedents
Classifications of Law
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The law may be classified in a variety of categories
Examples include substantive versus procedural, public versus private, and civil versus criminal
Regarding high profile defendants and criminal law, see the blog Sentencing Law and Policy
Civil LawCivil Law Criminal LawCriminal Law
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Area of concern: Rights and duties between individuals
Wrongful act: Harm to a person or to a person's property
Party who brings suit: Person who suffered harm
Standard of proof: Preponderance of the evidence
Remedy: Damages (money) and/or an equitable remedy
Area of concern: Offenses against society as a whole
Wrongful act: Behavior that violates a criminal statute
Party who brings suit: The state
Standard of proof: Beyond a reasonable doubt
Remedy: Punishment (fine and/or imprisonment)
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Civil versus Criminal Law
Cyberlaw
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Cyberlaw is a new field of law comprised of legal principles applicable to business conducted via the Internet
The Internet is not owned by a government; many of the standards of behavior are found in voluntary codes
Locating the Law
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Court decisions are published in chronological order, using a case citation for identification
Statutes are collected and published by subject matter, using a statutory citation
Legal Research Using Computers
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Westlaw and Lexis-Nexis are the two leading fee-based computerized legal search systems
Lexis-Nexis is available free for ASU students through the ASU library Web site
A variety of smaller legal databases are available free on the WWW