Business Law 1, Chapter 1

Per Curiam Opinion

(per curiam is Latin for "of the court"), which does not indicate which judge wrote the opinion.

IRAC method of Legal Reasoning

- Issue: What are the key facts and issues? - Rule: What rules of law apply to the case? - Application: How do the rules of law apply to the particular facts and circumstances of this case? - Conclusion: What conclusion should be drawn?

Majority Opinion

If there is not a unanimous opinion, usually a majority opinion is written, which outlines the views of majority of the judges deciding the case.

Dissenting Opinion

A dissenting opinion presents the views of one or more judges who disagree with the majority view.

Petitioner, Respondent

In equity proceedings (lawsuit), the party bringing the lawsuit is referred to the PETITIONER and the party being sued is referred to as the RESPONDENT.

Concurring Opinion

A judge who agrees (concurs) with the majority opinion as to the result but not as to the legal reasoning often writes a concurring opinion. In it, the judge sets out the reasoning that he or she con- siders correct.

Precedent (in Law)

A precedent is a decision that furnishes an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.

Action at Law, VS, Action at Equity

By filing a complaint VS filing a petition. Plaintiff & Defendant VS Petitioner & Respondent. Decision by Judge or Jury VS Decision by Judge. Result is a Judgement VS Result is a Decree. Remedy is Monetary Damages VS Remedy is Injunction, Specific Performance, or Rescission.

Reporters (Reports)

Cases are published, or "reported" in volumes called REPORTERS for the use of Precedent.

Reporting of Federal Court Decisions

Federal district (trial) court decisions are published unofficially in the FEDERAL SUPPLEMENT, and opinions from the circuit courts of appeals are reported unofficially in the FEDERAL REPORTER. The official edition of the United States Supreme Court decisions is the UNITED STATES REPORTS, which is published by the federal government.

Administrative Rules

Rules and regulations adopted by federal administrative agencies are initially published in the Federal Register, a daily publication of the U.S. government. Later, they are incorporated into the Code of Federal Regulations (CFR). CFR works similar to USC.

Unites States Code Annotated (USCA)

Similar to the USC, but more detailed. Includes USC and adds notes and annotations.

State Codes

State Codes follow the USC pattern of arranging law by subject. They may be called codes, revisions, compilations, consolidations, general statutes, or statutes, depending on the preferences of the states.

Ordinances

Statutory Law also includes ordinances, which are statutes passed by municipal or governing units to govern matters not covered by federal or state law

Natural Law School (theory)

Theoretically, Natural Law are laws that apply universally to all humankind.

Breach (He/She breaches)

a failure to fulfill an agreement. EX. Ted makes agreement to buy land from Donald in the future and makes down payment, but Donald BREACHES. Ted could sue for return of down payment, but the remedy he really seeks is to force Donald to sell the land and wants the court to grant the equitable remedy because monetary damages are inadequate (Specific Performance).

Administrative Agency

a federal, state, or local government agency established to perform a specific function.

Jurisdiction

a geographic area in which a court or courts have the power to apply the law.

Remedies

a relief, the legal means to enforce a right, or to redress a wrong.

Doctrine of Laches

a term derived from the Latin 'laxus' meaning lax or negligent. Used by a RESPONDENT to prove that the PETITIONER should not obtain the remedy sought.

Statute

a written law passed by a legislative body.A federal statute, of course, applies to all states. A state statute, in contrast, applies only within the state's borders.

Substantive Law

all laws that define, describe, regulate, and create legal rights and obligations.

Procedural Law

all laws that outline the methods of enforcing the rights established by substantive law.

Chancellor

an advisor of the king who had the power to grant new and unique remedies (in Courts of Equity). These remedies became named REMEDIES IN EQUITY, which include: SPECIFIC PERFORMANCE, INJUNCTION, & RESCISSION.

Defense, Defendant

an argument raised by the DEFENDANT (the party being sued).

Cyberlaw

an informal term used to refer to both new laws and modifications of traditional laws that relate to the online environment.

Injunction

an order to a party to cease engaging in a specific activity or to undo some wrong or injury.

Binding Authority

any source of law that a court must follow when deciding a case, such as constitutions, statutes etc.

Statutes of Limitations

arose from doctrine of laches. provides a specific time period for different types cases which are now fixed by the STATUTES OF LIMITATIONS. After the set time expires, no lawsuits can be brought, no matter how strong the case was originally.

Independent Regulatory Agencies

at national level, but president has much less control. Such as Securities & Exchange Commission.

Executive Agency

at national level, cabinet departments of the executive branch have several EXECUTIVE AGENCIES. Such as U.S. Food & Drug Administration. President often has FULL power.

Secondary Sources of Law

books and articles that summarize and clarify the primary sources of law. Such as encyclopedias, treatises, articles in law reviews, and compilations of law.

Administrative Law

consists of the rules, orders, and decisions of administrative agencies.

Courts of Law, Remedies at Law

courts that awarded compensation, also called REMEDIES AT LAW: Land, Items of Value, or Money. Today, it is usually mo

Uniform Commercial Code (UCC)

issued in 1952, with help from the NCCUSL, provides a uniform, yet flexible, set of rules governing commercial transactions between states.

Specific Performance

ordering a party to perform an agreement as promised.

Cases on Point

previously decided cases that are as similar as possible to the one under consideration.

Restatements of the Law

published by ALI (American Law Institute) which generally summarize the common law rules followed by most states. This is a Secondary Source of Law. Do NOT have force of Law, but judges often rely on them in making decisions.

Civil Law

rights and duties that exist between persons and between persons and their governments, as well as the relief available when a person's rights are violated. Typically, in a civil case, a private party sues another private party who has failed to comply with a duty (the government can also sue a party for a civil law violation).

Primary Sources of Law

sources that establish the law, including: The U.S. Constitution and the constitutions of the various states, Statutory law—including laws passed by Congress, state legislatures, or local governing bodies.Regulations created by administrative agencies, such as the Food and Drug Administration, & Case law and common law doctrines.

Case Law

the law as announced and established in cases.

Ethics

the principles governing what constitutes right or wrong behavior.

Plaintiff

the suing party.

Jurisprudence

the theory of philosophy of Law.

Alleges (to allege)

to make a claim.

Criminal Law

wrongs committed against the public as a whole. Criminal acts are defined and prohibited by local, state, or federal government statutes. Criminal defendants are thus prosecuted by public officials, such as a district attorney (D.A.), on behalf of the state, not by their victims or other private parties.

Constitutional Law

Law as expressed in constitutions (federal + state).

Statutory Law

Laws enacted by legislative bodies at any level of government, such as statutes passed by Congress or by state legislatures.

Legal Reasoning

Legal reasoning is the reasoning process used by judges in applying the law to the facts and issues of specific cases. Legal reasoning involves becoming familiar with the key facts of a case, identify- ing the relevant legal rules, applying those rules to the facts, and drawing a conclusion.

Westlaw Citation

Many court opinions that are not yet published or not intended to be, can be found WESTLAW, or WL, and online legal database maintained by Thomson Reuters.

Opinions (of the case)

Most decisions reached by reviewing, or appellate, courts are explained in written opinions. The opinion contains the court's reasons for its decision, the rules of law that apply, and the judgment.

Reporting of State Court Decisions

Most state trial court decisions are not published in books. Written decisions of the appellate, or reviewing, courts, however, are published and distributed (in print and online). After appellate decisions have been published, they are normally referred to (cited) by the name of the case; the volume, name, and page number of the state's official reporter. When more than one reporter is cited for the same case, each reference is called a PARALLEL CITATION.

Uniform Laws

NCCUSL - National Conference of Commissioners on Uniform State Laws, formed to help create "uniform laws" which would help ease difficulty of different laws in each state. These are merely suggestions, and states do not have to conform.

Judges & Justices

Often these two words are synonymous.

Types of Courts in the United States

There are FEDERAL COURTS and STATE COURTS. However, both types of courts consist of several tiers. TRIAL COURTS, in which evidence is presented and testimony given, are on the bottom tier. Decisions from a trial court can be appealed to a higher court, which commonly is an intermediate COURT OF APPEALS, or APPELLATE COURT. Decisions from these intermediate courts of appeals may be appealed to an even higher court, such as a STATE SUPREME COURT or the UNITED STATES SUPREME COURT.

Positivist School

There are no "natural rights". Belief that human rights exist solely because of laws. If the laws are not enforced, anarchy will result. Therefore, whether a law is "bad" or "good" is irrelevant. The law is the law and must be obeyed until it is changed—in an orderly manner through a legitimate lawmaking process.

Plurality Opinion

This is the opinion that has the support of the largest number of judges, but the group in agreement is less than a majority.

Historical School

This school looks to the past to discover what the principles of contemporary law should be. The legal doctrines that have withstood the passage of time— those that have worked in the past—are deemed best suited for shaping present laws. Hence, law derives its legitimacy and authority from adhering to the standards that historical development has shown to be workable.

United States Code (USC)

USC arranges existing federal laws by broad subject. Each subject (~50-52) receives a title and a title number. EX. Laws relating to commerce and trade are collected in Title 15, "Commerce and Trade." Titles are subdivided by sections. A citation to the U.S.C. includes both title and section numbers. Thus, a reference to "15 U.S.C. Section 1" means that the statute can be found in Section 1 of Title 15.

APPELLANT, APPELLEE

When a case is appealed from the original court or jurisdiction to another court or jurisdiction, the party appealing the case is called the APPELLANT. The APPELLEE is the party against whom the appeal is taken.

Unanimous Opinion

When all judges (or justices) agree.

Doctrine of Stare Decisis

a Latin phrase meaning "to stand on decided cases". Under this doctrine, judges are obligated to follow the precedents established within their jurisdictions. Includes: - A court should not overturn its own precedents unless there is a compelling reason to do so. (EX where overturned: Brown vs. Board) - Decisions made by a higher court are binding on lower courts.

Tort

a civil wrong.

Legal Realism (School)

based on the idea that law is just one of many institutions in society and that it is shaped by social forces and needs. The law is a human enterprise, and judges should take social and economic realities into account when deciding cases. Legal realists also believe that the law can never be applied with total uniformity. This influenced the growth of the SOCIOLOGICAL SCHOOL, which views law as a tool for promoting justice in a society.

Rescission

cancellation of a contractual obligation.

Cases of First Impression

cases for which no precedent exists. So courts often look at PERSUASIVE AUTHORITIES (precedents from other jurisdictions), Fairness, Social Values & Customs and PUBLIC POLICY (governmental pol- icy based on widely held societal values).

What does LAW consist of?

enforceable rules governing relationships among individuals and between individuals and their society.

Courts of Equity

established when people seeking remedy when do adequate remedy of law was available.

Common Law

general rules that applied throughout the entire country (England, originally).

Equitable Maxims

guide for judges, propositions or general statements of equitable rules. EX. "Equity aids the vigilant, not those who rest on their rights."

Citation (Law)

identifies the publication in which a legal authority such as a statute or a court decision or other source can be found.