BLAW 3175 exam 1 - ch. 1 sources of law
Laws
A body of enforceable rules governing relationships among individuals and between individuals and their society. They establish rights, duties, and privileges that are consistent with the values and beliefs of a society or its ruling group. They can consist of unwritten principles of behavior or are set forth in ancient or contemporary codes. They can be considered black and white, but there is a lot of gray area as they can be interpreted in many ways. Many may affect a single business transaction and they are important to consider when making ethical business decisions
Courts of equity
A branch of law founded on what might be described as notions of justice and fair dealing that seeks to supply a remedy when no adequate remedy at law is available. They decide on cases that are "beyond law" which are not accounted for by courts of law
Precedent
A court decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts. Judges sought to decide similar cases in a similar way and considered new cases with care as these interpretations became part of law and formed this
Administrative agency
A federal, state, or local government agency established to perform a specific function. They set forth administrative laws that govern each agency. Examples on a federal level are the DEA, the SEC, the IRS, the EPA while examples on a state level are state DMVs, state banks, etc.
Uniform law
A model law created by the National Conference of Commissioners on Uniform State Laws for the states to consider adopting. Each state has the option of adopting or rejecting all or part of one and only if a state legislature adopts one does it become part of the statutory law of that state. It was created in the 1800's due to differences among state laws frequently creating difficulties for businesspersons conducting trade and commerce among the states
Remedy at law
A remedy given by a court at law which involves compensatory damages such as a monetary amount
Statute
A source of law, rule, or order that is passed by a legislative body on either a federal or state level. When passed by a legislature, it ultimately is included in the federal code of laws or the relevant state code of laws. However, if one is deemed unconstitutional, it can be struck down by the Supreme Court as happened in the Texas Flag Burning case; Texas tried to legally reprimand a resident for burning a US flag, but this was deemed unconstitutional as it violated the first amendment
First impression
Cases where stare decisis cannot be taken into account due to lack of precedent are considered this. Courts may refer to positive law, public policy, or widely held social values to craft the decision
Case decision
In this legal citation (cite), "(2011)" refers to what? Fehr v. Algard, ___ NJ Super ___, A.3d (2011)
Defendant
In this legal citation (cite), "Algard" refers to what? Fehr v. Algard, ___ NJ Super ___, A.3d (2011)
Plaintiff
In this legal citation (cite), "Fehr" refers to what? Fehr v. Algard, ___ NJ Super ___, A.3d (2011)
Court
In this legal citation (cite), "___ NJ Super ___, A.3d" refers to what? Fehr v. Algard, ___ NJ Super ___, A.3d (2011)
Criminal law
Law that defines and governs actions that constitutes crimes. Generally, this law has to do with wrongful actions committed against society for which society demands redress. These acts are proscribed by local, state, or federal government statutes so defendants are prosecuted by public officials, such as a District Attorney, on behalf of the state, not by their victims or other private parties
Statutory law
Laws enacted by legislative bodies at any level of government, such as the statues passed by Congress or by state legislatures
Black letter laws
Laws that are well-established, technical legal rules that are no longer subject to dispute or debate. Knowledge of these are not enough in business law; there are many gray areas now that businesses assumes an ethical dimension
Stare decisis
Means "to stand on decided cases". A common law doctrine under which judges are obligated to follow the precedents established in prior decisions. Under this doctrine, once a court has set forth a principle of law as being applicable to a certain set of facts, that court and courts of lower rank must adhere to that principle and apply it in future cases involving similar fact patterns. The two aspects of this are: decisions made by a higher court are binding on lower courts and a court should not overturn its own precedents unless there is a strong reason to do so
Defendant
One against whom a lawsuit is brought; the accused person in a criminal proceeding
Substantive law
One classification of law. Law that defines, describes, regulates, and creates legal rights and obligations. These laws specifically spell out what is unlawful conduct
Procedural law
One classification of law. Law that establishes the methods of enforcing the rights established by substantive law. It tells what procedure to follow when dealing with unlawful conduct
Secondary sources of law
One of the sources that establish law. Books and articles that summarize and clarify the primary sources of law. Courts often refer to these for guidance in interpreting and applying the primary sources of law. These include legal encyclopedias, compilations (such as Restatements of the Law), official comments to statues, treatises, articles in law reviews published by law schools, and articles in other legal journals
Primary sources of law
One of the sources that establish law. These include the US constitution, statutes or laws passed by Congress and state legislatures, regulations created by administrative agencies (such as the FDA), and case law (court decisions)
Constitutional law
One primary source of law. The law expressed in either federal or state constitutions which set forth the general organization, power, and limits of their respective governments.
Legal realism
One school of legal thought in the 1920s and 1930s when a number of jurists and scholars rebelled against the historical approach to law. Those who adhere to this school believe that law is just one of many institutions in society and it is shaped by social forces and needs. Law is not simply the written law, but a product of the views of judicial decision makers, as well as social, economic, and contextual influences. Because law is a human enterprise, judges should take social and economic realities into account when deciding cases
Legal positivism (positive/national law)
One school of legal thought. Those who adhere to this school believe that there can be no higher law than the laws created by a national government. Law is the supreme will of the State and must be abided until changed; rights are not universal and whether a law is "good" or "bad" is irrelevant.
Natural law (school)
One school of legal thought; the oldest and one of the more significant schools. Those who adhere to this school believe that a higher or universal law exists that applies to all humanity and that written laws should imitate these principles. The government and legal system should reflect universal and ethical principles that are inherent in human nature; if a law is contrary to this, it need not be obeyed. Martin Luther King Jr. was a member of this school of legal thought
Plaintiff
One who initiates a lawsuit
Equitable remedies
Remedies awarded by courts of equity. They enforce notions of justice and fairness. They include specific performance, injunctions, and rescission
Ordinances
Statutory law includes these local statutes passed by municipal or county governing units to govern matters not covered by federal or state laws. They commonly have to do with city or county land use (zoning), building and safety codes, and other matters affecting only the local governing unit. They may not violate the US constitution or the relevant state constitution
Common law
The body of general rules that applied throughout the entire English realm. It developed from custom or judicial decisions in English and US courts, not attributable to a legislature. Courts developed these rules from the principles underlying judges' decisions in actual legal controversies as they attempted to be consistent. It is what American law is largely based on, but due to technological innovation and constant change, the laws must be interpreted differently over time
Administrative law
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities. They affect almost every aspect of a business's operations, including the firm's capital structure and financing, its hiring and firing procedures, its relations with employees and unions, and the way it manufactures and markets its products. Examples are the IRS being able to audit taxpayers or the DMV being able to revoke your license
Civil law
The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters. It spells out the rights and duties that exist between individuals, between individuals and their governments, and the relief available when a person's rights are violated. A private party typically sues another private party, although the government can also sue a party
Case law
The doctrines and principles of law announced in court decisions that constitute another basic source of American law. It includes interpretations of constitutional provisions, of statues enacted by legislatures, and of regulations created by administrative agencies. It governs all areas not covered by statutory law or administrative law and is part of our common law tradition
Bill of rights
The first ten amendments of the US Constitution. Involves fundamental, inalienable rights such as the right to free speech, the right to bear arms, the right to refuse entry of an authority figure without a warrant, etc.
Remedy
The means or relief given to a party to enforce a right or to compensate for the violation of a right. Often in the form of economic compensation (money, land, etc.) given to the violated party by the violator. Courts can enforce contractual rights, like forcing a party to sell a piece of property if they are contractually obligated to do so
Uniform Commercial Code (UCC)
This facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions. It was created through the joint efforts of the National Conference of Commissioners on Uniform State Laws and the American Law Institute. It was first issued in 1952 and has been adopted in all fifty states, DC, and the Virgin Islands
US Constitution
This is the basis of all law in the United States; the supreme law of the land. It gives everyone in the US fundamental rights as it constitutes on a federal level. These rights apply nationwide and all states are subject to the mandates. It reserves to the states all powers not granted to the federal government, so each state in the union has its own version of this that cannot conflict with the federal laws set forth
Burden of proof
This refers to the need for enough proof to prove guilt in both civil and criminal cases. In a civil case, the plaintiff must convince the court that, based on the evidence presented by both parties, it is more likely than not that his or her allegation is true. In criminal cases, the state must prove its case beyond a reasonable doubt
Private law
This type of law affects the rights and obligations of individuals, families, businesses, and small groups and exists to assist citizens in disputes that involve non-public matters. It includes contract law, tort law, property law, succession law, and family law
Public law
This type of law deals with issues that affect the general state and society as a whole. It includes administrative law, constitutional law, criminal law, municipal law, and international law. An example is the 1954 case Brown v. Board of Education in which Linda Brown, the plaintiff, contended that her daughter was not being protected under the constitution as she was banned from a closer school due to race. The court case declared segregation a violation of constitutional rights and affected society as a whole
State statute
This type of statute applies only within a state's borders and varies from state to state. They may not violate the US constitution or the relevant state constitution
Federal statute
This type of statute applies to all states and may not violate the US constitution
