BUSINESS LAW CH 1
Case Decisions and Opinions
--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 judgement You may encounter several types of opinions as you read appellate cases, including the following: -When all the judges (or justices) agree, a unanimous opinion is written for the entire court -When there is not unanimous agreement, a majority opinion is generally written -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 -A dissenting opinion presents the views of one or more judges who disagree with the majority view -Sometimes, no single position is fully supported by a majority of the judges deciding a case (In this situation, we may have a plurality opinion) -Finally, a court occasionally issues a per curiam opinion (per curiam is Latin for "of the court"), which does not indicate which judge wrote the opinion
Stare Decisis and Legal Reasoning
-In deciding what law applies to a given dispute and then applying that law to the facts or circumstances of the case, judges rely on the process of legal reasoning -Through the use of legal reasoning, judges harmonize their decisions with those that have been made before, as the doctrine of stare decisis requires
Constitutional Law
-Law as expressed in the US Constitution or state constitutions - the US Constitution is the supreme law of the land -state constitutions are supreme within state borders to the extent that they do not conflict with the US Constitution
Restatements of the Law Clarify and Illustrate Common Law
-The American Law Institute (ALI) has published compilations of the common law called Restatements of the Law, which generally summarize the common law rules followed by most states -There are Restatements of the Law in the areas of contracts, torts, agency, trusts, property, restitution, security, judgements, and the conflict of laws -The Restatements, like other secondary sources of law, do not in themselves have the force of law, but they are an important source of legal analysis and opinion -Hence, judges often rely on them in making decisions
Primary Sources of Law
-sources that establish the law -includes: 1. The US Constitution and the constitutions of the various states 2. Statutory law—including laws passed by Congress, state legislatures, or local governing bodies 3. Regulations created by administrative agencies, such as the Federal Trade Commission (administrative law) 4. Case law and common law doctrines
Civil law
-spells out the 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 (blank) case, a private party sues another private party who has failed to comply with a duty -note that the government can also sue a party for (blank) violation) -includes contract law and tort law
Classifications of Law
-substantive law and procedural law -federal law and state law -private law (dealing with relationships between private entities) and public law (addressing the relationship between persons and their governments_ -national law and international law -civil law and criminal law
Common Law
-the body of law developed from custom or judicial decisions in English and US courts, not attributable to a legislature
Laches
-the equitable doctrine that bars a party's legal action if the party has neglected for an unreasonable length of time to act on his or her rights -arose to encourage people to bring lawsuits while the evidence was fresh
Appellee
-the party against whom an appeal is taken--that is, the party who opposes setting aside or reversing the judgment -in some appellate courts, the party against whom the suit is brought or appealed is called the respondent
Appellant
-the party who takes an appeal from one court to another -in some appellate courts, the party appealing a case is referred to as the petitioner
Legal Reasoning
-the process of reasoning by which a judge harmonizes his or her opinion with the judicial decisions in previous cases
Jurisprudence
-the science or philosophy of law -involves learning about different schools of legal thought and how the approaches to law characteristic of each school can affect judicial decision making
Statutory Law
-written law passed by a body of legislature -laws enacted by legislative bodies at any level of government, such as statutes passed by Congress or by state legislatures -laws (including uniform laws) and other ordinances enacted by federal, state, and local legislatures - federal statutes may not violate the US Constitution -state statutes and local ordinances may not violate the US Constitution or the relevant state constitution
Breach
Fail to fulfill
Remedy
the relief given to an innocent party to enforce a right or compensate for the violation of a right
Liability
the state of being legally responsible (liable) for something, such as a debt or obligation
Jurisdiction
-refers to a geographic area in which a court or courts have the power to apply the law
Cyberlaw
-refers to the emerging body of law that governs transactions conducted via the Internet -not really a classification of law, though, nor is it a new type of law -Rather it is an informal term used to refer to both new laws and modifications of traditional laws that relate to the online environments
Ordinance
-regulations passed by municipal or county governing units to deal with matters not covered by federal or state law -included in statutory law -commonly have to do with city or county land use (zoning ordinances), building and safety codes, and other matters affecting the local community
Legal and Equitable Remedies Today
-The establishment of courts of equity in medieval England resulted in two distinct court systems: courts of law and courts of equity -The courts had different sets of judges and granted different types of remedies -During the nineteenth century, however, most states in the US adopted rules of procedure that resulted in the combining of courts of law and equity -A party now may request both legal and equitable remedies in the same action, and the trial court judge may grant either or both forms of relief
Schools of Legal Thought
-The natural law school -the positivist school -the historical school -legal realism
Federal and State Court Systems
-There are two types of courts in the United States, federal courts and state courts -Both systems consist of several levels, or tiers, of courts -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
Law
-a body of enforceable rules governing relationships among individuals and between individuals and their society -· Regardless of how such rules are created, they all have one thing in common: they establish rights, duties, and privileges that are consistent with the values and beliefs of their society or its ruling group.
Stare Decisis
-a common law doctrine under which judges are obligated to follow the precedents established in prior decisions (and within their jurisdictions) Has two aspects: -1. A court should not overturn its own precedents unless there is a compelling reason to do so -2. Decisions made by a higher court are binding on lower courts
Courts of Law
-a court in which the only remedies that could be granted were things of value, such as money damages -in the early English courts, (blank) were distinct from courts of equity
Concurring Opinion
-a court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority's opinion
Plurality Opinion
-a court opinion that is joined by the larger number of judges or justices hearing the case, but fewer than half of the total number -no single position is fully supported by a majority of the judges deciding a case -This is the opinion that has the support of the largest number of judges, but the group in agreement is less than a majority
Dissenting Opinion
-a court opinion that presents the views of one or more judge or justices who disagree with the majority's decision
Majority Opinion
-a court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case
Courts of Equity
-a court that decides controversies and administers justice according to the rules, principles, and precedents of equity
Precedent
-a decision that furnishes an example or authority for deciding subsequent cases involving identical or similar legal principles or facts
Statutes of Limitations
-a federal or state statute setting the maximum time period during which a certain action can be brought tor certain rights enforced -After the time allowed has expired, no action (lawsuit) can be brought, no matter how strong the case was originally
Administrative Agency
-a federal, state, or local government agency established to perform a specific function, such as to make and enforce rules pertaining to the environment
Uniform Law
-a model law created by the National Conference of Commissioners on Uniform State Law and/or the American Law Institute for the states to consider adopting -if the state adopts the law, it becomes statutory law in that state -each state has the option of adopting or rejecting all of part of a (blank) law -The most ambitious uniform act of all, however, was the Uniform Commercial Code
Plaintiff
-a party that initiates a lawsuit -sometimes called petitioner
Reporter
-a publication in which court cases are published, or reported
Remedies in Equity
-a remedy allowed by courts in situations where remedies at law are not appropriate -include injunction, specific performance, remission and restitution, and reformation -specific performance: involves ordering a party to perform an agreement as promised -injunction: an order to a party to cease engaging in a specific activity or to undo some wrong or injury -Recession: the cancellation of a contractual obligation
Remedy at Law
-a remedy available in a court of law -used to be land, items of value or money -Today, the (blank) normally takes the form of monetary damages—an amount given to a party whose legal interests have been injured
Sociological School
-a school of legal though that views the law as a tool for promoting justice in society
The Positivist School
-a school of legal thought centered on the assumption that there is no law higher than the laws created by the government -Positive law, or national law, is the written law of a given society at a particular time -In contrast to natural law, it applies only to the citizens of that nation or society -those who adhere to (blank) believe that there can be no higher law than a nation's positive law -according to this school, there are no "natural rights" -Rather, human rights exist solely because of laws -If laws are not enforced, anarchy will result -Thus, 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 -A judge who takes this view will probably be more inclined to defer an existing law than would a judge who adheres to the natural law tradition
Legal Realism
-a school of legal thought that advocates a less abstract and more realistic and pragmatic approach to the law and takes into account customary practices and the circumstances surrounding the particular transaction -based on the idea that law is just one of many institutions in society and that is shaped by social forces and needs -Because the law is a human enterprise, this school reasons that judges should take social and economic realities into account when deciding cases -also believe that the law can never be applied with total uniformity -Given that judges are human beings with unique personalities, value systems, and intellects, different judges will obviously bring different reasoning processes to the same case -strongly influenced the growth of what is sometimes called the sociological school, which views law as a tool for promoting justice in society -Generally, jurists who adhere to this philosophy of law are more likely to depart from past decisions than are jurists who adhere to other schools of legal thought
The Historical School
-a school of legal thought that stresses the evolutionary nature of law and looks to doctrines that have withstood the passage of time for guidance in shaping present laws -· Followers of the (blank) school are more likely than those of other schools to strictly follow decisions made in past cases
Independent Regulatory Agencies
-an administrative agency that is not considered part of the government's executive branch and is not subject to the authority of the president -cannot be removed without cause -examples: the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commission
Executive Agencies
-an administrative agency within the executive branch of government -at the federal level, (blank) agencies are those within the cabinet department
Persuasive Authorities
-any legal authority that a court may look at for guidance but need not follow when making its decisions -courts often utilize when deciding cases of first impression
Binding Authority
-any source of law that a court must follow when deciding a case -includes constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction
Secondary Sources of Law
-books and articles that summarize and clarify the primary sources of law -Examples include legal encyclopedias, treatises, articles in law reviews, and compilations of law, such as the Restatements of the Law -Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law
Per Curiam Opinion
-by the whole court; a court written by the court as a whole instead of being authored by a judge or justice -does not indicate which judge wrote the opinion
Cases of First Impression
-cases for which no precedents exist
Criminal Law
-concerned with wrongs committed against the public as a whole -(blank) acts are defined and prohibited by local, state, or federal government statutes -(blank) 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
Substantive law
-consists of all laws that define, describe, regulate, and create legal rights and obligations
Procedural Law
-consists of all laws that outline the methods of enforcing the rights established by substantive law
Administrative Law
-consists of the rules, orders, and decisions of federal, state, and local administrative agencies in order to carry out their duties and responsibilities -Rules issued by various administrative agencies now affect almost every aspect of a business's operations -Regulations govern a business'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
The Uniform Commercial Code (UCC)
-facilitates commerce among states by providing a uniform, yet flexible, set of rules governing commercial transactions
Equitable Maxims
-general propositions or principles of law that have to do with fairness (equity)
Citation
-identifies the publication in which a legal authority—such as a statute or a court decision or other source—can be found
Case Law and Common Law Doctrines
-judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies -The rules of law announced in court decisions -the doctrines and principles announced in cases -governs all areas not covered by statutory law or administrative law and is part of our common law tradition
Defendant
-one against whom a lawsuit is brought, r the accused person in a criminal proceeding -also called the respondent
The Natural Law School
-one of the oldest and most significant schools of legal thought -those who believe in this hold that there is a universal law applicable to all human beings -example: should foreign employees get the same treatment as US employees
Controlling Precedents
-precedents that must be followed within a jurisdiction -a type of binding authority
Cases on Point
-previously decided cases that are as similar as possible to the one under consideration
Basic Steps in Legal Reasoning (IRAC)
1. issue--what are the key facts and issues? 2. Rule--What rule of law applies to the case? -A rule of law may be a rule stated by the courts in previous decisions, a state or federal statute, or a state or federal administrative agency regulation 3. Application--How does the rule of law apply to the particular facts and circumstances of this case? -This step is often the most difficult because each case presents a unique set of facts, circumstances, and parties -Although cases may be similar, no two cases are ever identical in all respects -Normally, judges (and lawyers and law students) try to find cases on point—previously decided cases that are as similar as possibly to the one under consideration 4.Conclusion--What conclusion should be drawn? -This step normally presents few problems -Usually, the conclusion is evident if the previous three steps have been followed carefully
The Common Law Tradition
Origins of Common Law -the American legal system is based on the common law tradition, which originated in medieval England --> Legal and Equitable Remedies -remedies at law (land. items of value, or money) and remedies in equity (including specific performance, injunction, and recession of a contractual obligation) originated in the Early English Courts of law and courts of equity, respectively --> Case Precedents and the Doctrine of Stare Decisis -in the king's courts, judges attempted to make their decisions consistent with previous decisions, called precedents -this practice gave rise to the doctrine of stare decisis -this doctrine, which became a cornerstone of the common law tradition, obligates judges to abide by precedents established in their jurisdiction --> Common Law Today -the common law governs all areas not covered by statutory law or administrative laws -courts interpret statutes and regulations
