Chapter 1 - Law and Legal Reasoning

State Agency

(Ex: a state pollution-control agency) is created as a parallel to a federal agency (Ex: The Environmental Protection Agency).

Action at Law vs. Action in Equity

(listed in that order) Initiation of lawsuit- by filing a complaint vs. by filing a petition Parties- plaintiff and defendant vs. petitioner and respondent. Plaintiff brings a lawsuit against the defendant. the pie symbol means plaintiff, the delta triangle means defendant. Decision- by jury or judge vs. by judge (no jury) Result- judgement vs. Decree Remedy- monetary damages vs. injunction, performance, rescission

Primary sources of Law (sources that establish the law)

1. U.S. Constitution and constitutions of 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 food and drug administration. 4. Case law and common law doctrines.

Concurring Opinion

A judge who agrees (concurs) with the majority opinion as to the result but not as tot the legal reasoning writes a concurring opinion.

Federal Statute (applies to all states)

A state statute, in contrast, applies only within the state's borders. State laws thus may vary from state to state.

Case Citations

After appellate decisions have been published, they are normally referred to (cited) by the name of the case; volume, name, and page number of the state's official reporter (if different from the National Reporter system); the volume, name, and page number of the National Reporter; and the volume, name, and page number of any other selected reporter.

Administrative Law

Another important source of American Law. Consists of the rules, order, and decisions of administrative agencies.

Secondary Sources of Law

Books and articles that summarize and clarify the primary sources of law. Ex: 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 discussed here.

Code of Federal Regulations (C.F.R.)

C.F.R. is divided into fifty titles. Rules within each title are assigned section numbers. A full citation to the C.F.R. includes title and section numbers.

Rules of Law Announced in Court Decisions

Constitutes another basic source of American Law. These rules include interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies.

Courts of Law

Courts that awarded this type of compensation became known as courts of law.

Intermediate Court of Appeals (Appellate Court)

Decision from a trail court can be appealed to a higher court, which commonly is an intermediate court of appeals, or appellate court. if you have an appellant and an appellee (defendant). Decisions from these intermediate courts of appeals may be appealed to an even higher court, such as a state supreme court or to the United States Supreme Court. The reported appellate decision are published in volumes called reports or reporters.

Case Title

Ex: Adams v. Jones Indicates the names of the parties to the lawsuit. The v. in the case title stands for versus, same as against. You must carefully read the facts of each case to identify the parties.

Federal Court Decisions

Federal Supplement: Federal district (trail) court decisions are published unofficially in the Federal Supplement (F.Supp.) Federal Reporter: Opinions from the circuit courts of appeals (reviewing courts) are reported unofficially in the Federal Reporter (F., F.2d for second series). Bankruptcy Reporter: Cases concerning federal bankruptcy law are published unofficially in the Bankruptcy Reporter (Bankr., B.R.).

Two Types of Courts in the U.S.

Federal and State courts. Each consist of several levels, or tiers, of courts.

IRAC (Issue, Rule, Application, and Conclusion) Method of Legal Reasoning

Issue, Rule, Application, and Conclusion

The Uniform Commercial Code

It is the most ambitious uniform act of all. One of the most important uniform acts is the Uniform Commercial Code (UCC). The UCC facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions.

Statutory Law

Laws enacted by legislative bodies at any level of government, such as statutes passed by congress or by state legislatures, make up the body of law. When legislature passes a statute, that statute ultimately is included in the federal code of laws or the relevant state code of laws.

Sociological School

Legal realism strongly influenced the growth of what is sometimes called the sociological school, which views law as a tool for promoting justice in society. Law is a tool for promoting social justice.

Opinions

Most decisions reached by reviewing/ 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. You may encounter several types of opinions as you read appellate cases. Judgment without the e. The court divides the opinion into three sections, each headed by an explanatory heading. The first section summarizes the factual background of the case.

First Impression (When There is No Precedent)

Occasionally, courts must decide cases for which no precedents exist.

Equitable Maxims

Propositions or general statements of equitable rules. Whoever seeks equity must do equity. (Anyone who wishes to be treated fairly must treat others fairly). Where there is equal equity, the law must prevail. (The law will determine the outcome of a controversy in which the merits of both sides are equal). One seeking the aid of an equity court must come to the court with clean hands. (The plaintiff must have acted fairly and honestly. Equity will not suffer a wrong to be without a remedy. (Equitable relief will be awarded when there is a right to relief and there is no adequate remedy at law). Equity regards substance rather than form. (Equity is more concerned with fairness and justice than with legal technicalities). Equity aids the vigilant, not those who rest on their rights. (Equity will not help those who neglect their rights for an unreasonable period of time.)

Tenth Amendment to the U.S. Constitution

Reserves to the states all powers not granted to the federal government. Each state in the union has its own constitution.

National Reporter System

State Court Opinions appear in regional units of the National Reporter System, published by West Group (now Thompson Reuters). The National Reporter System divides the states into the follow geographic areas: Atlantic (A., A.2d meaning second series), North Eastern (N.E.), North Western (N.W.), Pacific (P.), South Eastern (S.E.), South Western (S.W.), and Southern (So.).

Case Law

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. Judge-made law.

Constitutional Law

The federal government and the states have separate written constitutions that set forth the general organization, powers, and limits of their respective governments. Constitutional law is the law as expressed in these constitutions.

Stare Decisis (Latin for to stand on decided cases)

The practice of deciding new cases with reference to former decisions, or precedents, became a cornerstone of the English and American judicial system. Judges are obligated to follow the precedents established within their jurisdictions. Has two parts: 1. a court should not overturn its own precedents unless there is a compelling reason to do so. 2. Decision made by a higher court are binding on lower courts. Stare decisis helps the courts to be more efficient because, if other courts have analyzed a similar case, their legal reasoning and opinions can serve as guides. It makes the law more stable and predictable. If the law on a subject is well settled, someone bringing a case can usually rely on the court to rule based on what the law has been in the the past. You follow established precedent. aka doctrine of precedent. We have it for stability, predictability, and continuity.

Defendant's Motion

The second major section of the opinion responds to the defendant's motion.

Remedies at Law

Three remedies: land, items of value, or money.

Reporters (aka Reports)

Today cases are published or "reported" in volumes. The supreme court has its own books called the U.S. Books. Each state has it's own books for it's own statutes. NV has NRS.

Unpublished Opinions

Westlaw (WL): when no citation to a published reporter is available for cases cited in this text, we give the WL citation.

Unanimous Opinion

When all the judges (justices) agree a unanimous opinion is written for the entire court.

Parallel Citation

When more than one reporter is cited for the same case, each reference is called a parallel citation.

Common Law

a body of general rules that applied throughout the entire English realm. common law doctrines and principles, however, govern only areas not covered by statutory or administrative law.

Appellant

a case appealed from the original court or jurisdiction to another court or jurisdiction. The party appealing the case is called the appellant.

Natural Law

a higher or universal law exists that applies to all human beings, and written laws should imitate these inherent principles. Positive law gets it's legitimacy from natural law. the natural law tradition is one of the oldest and most significant schools of jurisprudence.

Summary Judgment

a judgment that a court enters without beginning or continuing a trail. this judgment can be entered only if no facts are in dispute and the only question is how the law applies to the facts.

Precedent

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

Public Law

addressing the relationship between persons and their governments.

Departure from Precedent

although courts are obligated to follow precedents, sometimes a court will depart from the rule of precedent if it decides that the precedent should no longer be followed. If a court decides that a ruling precedent is simply incorrect or that technological or social changes have rendered the precedent inapplicable, the court might rule contrary to the precedent.

Damages

an amount given to a party whose legal interests have been injured.

Triable Issue

an issue that is subject to judicial examination and trail.

Uniform Laws

are model statutes. Differences among state laws frequently created difficulties for businesspersons conducting trade and commerce among the states. A group of legal scholars and lawyers formed the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1892 to draft uniforms laws for the states too consider adopting. Each state has the option of adopting or rejecting a uniform law. Only if a state legislature adopts a uniform law does that law become party of the statutory law of that state.

United States Code (U.S.C.)

arranges all exisiting federal laws by broad subject. Each of the fifty subjects is given a title and a title number. For instance, laws relating to commerce and trade are collected in Title 15 "Commerce and Trade." Titles are subdived by sections. Ex: "15 U.S.C. Section 1" means that the statute can be found in Section 1 of title 15. Section can be designated by the ss symbol, or sections by two sets of ss symbols. United States Code Annotated (U.S.C.A.) State codes follow the U.S.C. pattern of arrange law by subject. In some codes, subjects are designated by number. In others, they are designated by name.

Substantive Law

consists of all laws that define, describe, regulate, and create legal rights and obligations. Sub v. procedural: these are the laws that describe and regulate define legal rights and obligations. things like torts contract constitution law admin law. the types of law. Ex: Thou shall not hit. Prod: laws establish and regulate the manner of enforcement of the rights established by sub law. Ex: how police arrest a person, how they get processed (indited). The steps after sub law.

Procedural Law

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

Private Law

dealing with relationships between private entities.

Law

enforces rules governing relationships among individuals and between individuals and their society. The enforceable rules establish: rights, duties, and privileges that are consistent with the values and beliefs of their society or its ruling group.

Breaches

fails to fulfill

Laws and government regulations affect almost all business activities

from hiring to firing decisions, to work place safety, the manufacturing and marketing of products, business financing, and more.

Public Policy

governmental policy based on widely held societal values.

Application

how do the rules of law apply too the particular facts and circumstances of this case? cases on point- previously decided cases that are as similar as possible to the one under consideration. conclusion- what conclusion should be drawn?

Citation

identifies the publication in which a legal authority - such as a statute or a court decision or other source - can be found. You can use citations to find primary sources of law.

Trail Courts

in which evidence is presented and testimony given, are on the bottom tier (which also includes lower courts that handle specialized issues). Decisions from state trail courts are typically filed int he office of the clerk of the court, where the decision are available for public inspection.

Jurisprudence (the study 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.

Specific Performance

involves ordering a party to perform an agreement as promised.

Equity

is a branch of law - founded on notions of justice and fair dealing - that seeks to supply a remedy when no adequate remedy at law is available. Ex: when no adequate remedy was obtained, people petitioned the king for relief.

Administrative Agency

is a federal, state, or local government agency established to perform a specific function. Rules issued by various administrative agencies now affect almost every aspect of a business's operations.

Injunction

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

Binding Authority (aka Controlling Precedents)

is 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. Every court has to essentially follow it. If court goes against abortion. who follows it? nobody. because it's not binding authority. the LV justice court cannot overturn the U.S. supreme court. We depart from precedent if it considers prior precedent wrongly decided. if it considers it contrary to public policy and outdated.

Legal Realism

is based on the idea that law is just one of many institutions in society and that it is shaped by social forces and needs. positive law can't be applied in the abstract. have to take in specific circumstances like case law. It's not just black and white.

Criminal Law

is concerned with wrongs committed against the public as a whole. Criminal acts are defined and prohibited by local, state, or federal government statutes. obligations of persons to society as a whole Ex: hitting someone is both. law says you can't. if you hit and damage there is a civil wrong. aka assault or battery. society as a whole says you can't do that and you commit it that is criminal law.

Rescission

is the cancellation of a contractual obligation.

U.S. Constitution

is the supreme law of the land. It is the basis of all law in the United States.

Allege

is to assert to be true as described.

Important Function of Law in Society

is to provide stability, predictability, and continuity so that people can know how to order their affairs.

Seamlessly Integrated

means coordinated to operate without any awkward transitions or interruptions.

Plurality Opinion

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 the majority. They are agree he's guilty but for different reasons.

Plaintiff or Petitioner

party initiating a lawsuit. U.S. supreme court titles them petitioners and respondents, but will also call them appellant vs. appellee.

Legal Positivism

positive or national law (the written law of a given society at a particular time) applies only to the citizens of that nation or society. There is no higher law than the ones created by our legislature. must be obeyed even if against natural law. Those that adhere to legal positivism believe that there can be no higher law that a nation's positive law.

Persuasive Authorities

precedents from other jurisdictions for guidance. A court may also consider legal principles and policies underlying previous court decisions or existing statutes. Other factors that courts look at include fairness, social values and customs, and public policy.

Dissenting Opinion

presents the views of one or more judges who disagree with the majority view. These are the judges that lost.

Cyberlaw

refer to the emerging body of law that governs transactions conducted via the internet. It is an informal term used to refer to both new laws and modifications of traditional laws that relate to the online environment.

Jurisdiction.

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

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. enforces duties from one person to another.

Ordinances (Statutory Law includes Local Ordinances)

statutes (laws, rules, or orders) passed by municipal or county governing units to govern matters not covered by federal or state law. Ordinances commonly have to do with city or county land use (zoning ordinances), building and safety codes, and other matters affecting the local community.

Restatements of the Law

summarize the common law rules followed by most states. They are in the areas of contracts, torts, agency, trusts, property, restitution, security, judgments, and conflict of laws.

Historical School

the historical school of legal thought emphasizes the evolutionary process of law by concentrating on the origin and history of the legal system. The study of the evolution of law.

Remedies

the legal means to enforce a right or redress a wrong. Ex: if one person wronged another in some way, the king's courts could aware as compensation one or more of the following: land, items of value, or money.

Appellee

the party against whom the appeal is taken.

Defendant or Respondent

the party against whom the lawsuit is brought. Lawsuits frequently involve more than one plaintiff and/or defendant.

Ethics

the principles governing what constitutes right or wrong behavior. Business decision makers need to consider not just whether a decision is legal, but also whether it is ethical.

Remedies in Equity

the remedies granted by the equity courts became known as remedies in equity, or equitable remedies. these remedies include specific performance, an injunction, and rescission. The courts will not grant equitable remedies unless the remedy at law - monetary damages is inadequate.

Decision

the third major section of the opinion, the court states its decision.

Judge and Justice

they have the same meaning and represent two designations given to judges in various courts. All members of the U.S. Supreme Court, for instance, are referred to as justices, and justice is the formal title often given to judges of appellate courts, although this is not always the case. Justice is commonly abbreviated J. and justices is JJ. Ex: Chief Justice Roberts would be Roberts, C.J.

A key to avoiding business disputes is to

think ahead when starting or running a business or entering a contract. Learn what you can about the laws pertaining to that enterprise or the transaction.

Legal Reasoning

through the use of legal reasoning, judges harmonize their decision with those that have been made before, as the doctrine of stare decisis requires.

Issue

what are the key facts and issues? Assault - words or acts that wrongfully and intentionally make another person fearful of immediate physical harm. Tort- civil wrong of assault.

Rule

what rules of law apply to the case? alleges- claims

Majority Opinion

when there is not a unanimous agreement. It outlines the views of the majority of the judges deciding the case. Most agree one way and some agree but not for the same reasons. There are 9 supreme justices. A majority would be 5 to 4.

Briefing (aka Summarizing)

when you brief a case, you first summarize the background and facts of the case, as the authors have done for the cases presented in this text. You then indicate the issue (or issues) before the court. An important element in the case brief is, or course, the court's decision on the issue and the legal reasoning used by the court in reaching that decision. Detailed instructions on how to brief a case are in Appendix A.

Per Curiam Opinion (latin for "of the court")

which does not indicate which judge wrote the opinion.