CHAPTER 1

LEGAL HERITAGE AND THE INFORMATION AGE

2010 Pearson Education, Inc., publishing as Prentice-Hall

WHAT IS LAW? Law consists of rules that regulate conduct of individuals, businesses, and other organizations within society. It is intended to protect persons and their property from unwanted interference from others. The law forbids persons from engaging in certain undesirable activities.

2010 Pearson Education, Inc., publishing as Prentice-Hall

Definition of Law
A body of rules of action or conduct prescribed by the controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences.

2010 Pearson Education, Inc., publishing as Prentice-Hall

Functions of Law
Keeping the peace Shaping moral standards Promoting social justice Maintaining the status quo Facilitating orderly change Facilitating planning Providing a basis for compromise Maximizing individual freedom

2010 Pearson Education, Inc., publishing as Prentice-Hall

Functions of Law Facilitating planning

(continued)

e.g., well-designed commercial laws allow businesses to plan their activities, allocate their resources, and assess their risks

Maximizing individual freedom

e.g., the rights of freedom of speech, religion, and association granted by the First Amendment to the U.S. Constitution

2010 Pearson Education, Inc., publishing as Prentice-Hall

Qualities of Law
Fairness
The American legal system is one of the most comprehensive, fair, and democratic systems of law ever developed and enforced.

2010 Pearson Education, Inc., publishing as Prentice-Hall

Qualities of Law (continued)

Flexibility
U.S. law evolves and changes along with the norms of society, technology, and the growth and expansion of commerce in the U.S. and the world.
E.g., Brown v. Board of Education E.g., new laws on cybercrimes and cybertorts

2010 Pearson Education, Inc., publishing as Prentice-Hall

Jurisprudence: The philosophy or science of the law

2010 Pearson Education, Inc., publishing as Prentice-Hall

Schools of Jurisprudential Thought

Natural Law School Historical School

Analytical School Sociological School Law and Economics School

2010 Pearson Education, Inc., publishing as Prentice-Hall

Critical Legal Studies School

Command School

Schools of Jurisprudential Thought

(continued)

Natural Law School

Law is based on what is correct. Law should be based on morality and ethics.

Historical School
Law is an aggregate of social traditions and customs.

Analytical School
Law is shaped by logic.

2010 Pearson Education, Inc., publishing as Prentice-Hall

10

Schools of Jurisprudential Thought

(continued)

Sociological School
Law is a means of achieving and advancing certain sociological goals.

Command School
Law is a set of rules developed, communicated, and enforced by the ruling party.

2010 Pearson Education, Inc., publishing as Prentice-Hall

11

Schools of Jurisprudential Thought Critical Legal Studies School

(continued)

Legal rules as unnecessary, with legal disputes to be solved by applying arbitrary rules based on fairness.

Law and Economics School

Promoting market efficiency as the central concern of legal decision making.

2010 Pearson Education, Inc., publishing as Prentice-Hall

12

History of American Law

English system of law generally adopted Became the foundation from which American judges developed our common law

2010 Pearson Education, Inc., publishing as Prentice-Hall

13

English Common Law

Developed by judges who issued their opinions when deciding cases. Principles announced in these cases became precedent for later judges deciding similar cases.

2010 Pearson Education, Inc., publishing as Prentice-Hall

14

English Common Law (continued)

Law Courts
Uniform system of courts emphasizing form over substance Granted only monetary damages

Courts of Chancery (equity courts)

Remedies shaped to fit each situation

Merchant Courts
Solved commercial disputes based on trade practices

2010 Pearson Education, Inc., publishing as Prentice-Hall

15

Romano-Germanic Civil Law System

Roman Twelve Tables (450 B.C.) Corpus Juris Civilis (A.D. 534) Napoleonic Code (1804) German Civil Code (1896)

2010 Pearson Education, Inc., publishing as Prentice-Hall

16

Civil Law System

(continued)

Civil Code and parliamentary statutes that expand and interpret it are the sole sources of law in most civil law countries. Adjudication of a case is simply the application of the code or the statutes to a particular set of facts.

2010 Pearson Education, Inc., publishing as Prentice-Hall

17

In some civil law countries, court decisions do not have the force of law.

2010 Pearson Education, Inc., publishing as Prentice-Hall

18

Adoption of English Common Law in America

All states except Louisiana base their legal systems on the English common law. Louisiana bases its law on the civil law.
Influence of its French heritage

2010 Pearson Education, Inc., publishing as Prentice-Hall

19

Adoption of English Common Law in America (continued)

In the U.S., law, equity, and merchant courts have been merged.
Most U.S. courts permit the aggrieved party to seek both law and equitable orders and remedies.

2010 Pearson Education, Inc., publishing as Prentice-Hall

20

Sources of Law in the U.S.

Constitutions Codified Law

Treaties Executive Orders Agency Rules & Regulations

21

Judicial Decisions
2010 Pearson Education, Inc., publishing as Prentice-Hall

Sources of Law in the U.S. (continued)

U.S. Constitution Supreme law of the land Established structure of federal government Legislative branch Executive branch Judicial branch Enumerates federal powers Reserves all other powers to states State Constitutions
22

2010 Pearson Education, Inc., publishing as Prentice-Hall

Sources of Law in the U.S. (continued)

Treaties
The President, with the advice and consent of the Senate, may enter into treaties with foreign governments. Congress passes statutes to fulfill treaty requirements.

2010 Pearson Education, Inc., publishing as Prentice-Hall

23

Sources of Law in the U.S. (continued)

Codified law: Statutes and ordinances
The U.S. Congress enacts federal statutes. State legislatures enact state statutes. Municipalities and local government bodies enact ordinances.

2010 Pearson Education, Inc., publishing as Prentice-Hall

24

Sources of Law in the U.S. (continued)

Executive orders
Issued by the president and state governors
E.g., order requiring federal agencies to buy more hybrid vehicles E.g., order allowing oil drilling on federal land

Power derived from express delegation from legislative branch or implied from constitutional powers
2010 Pearson Education, Inc., publishing as Prentice-Hall

25

Sources of Law in the U.S. (continued)

Regulations and Orders of Administrative Agencies
Empowered by legislative and executive branches of government
Adopt rules and regulations Enforce statutes Hear and decide disputes

Many agencies regulate business

E.g., SEC, FTC, DOT

2010 Pearson Education, Inc., publishing as Prentice-Hall

26

Sources of Law in the U.S.

Judicial decisions

(continued)

Courts decide controversies. Judicial decisions usually state the rationale used by the court in reaching that decision.

2010 Pearson Education, Inc., publishing as Prentice-Hall

27

Doctrine of Stare Decisis

Based on the common law tradition, past court decisions become precedent for deciding future cases. Lower courts follow the precedent established by higher courts.

2010 Pearson Education, Inc., publishing as Prentice-Hall

28

Doctrine of Stare Decisis (continued)

Both federal and state courts follow the precedents established by U.S. Supreme Court decisions. Courts in one jurisdiction are not bound by precedent of another jurisdiction, but may look at it for guidance.

2010 Pearson Education, Inc., publishing as Prentice-Hall

29

Doctrine of Stare Decisis (continued)

Purpose
Uniformity Efficiency Predictability Flexibility (power to depart from or change precedent when warranted)

2010 Pearson Education, Inc., publishing as Prentice-Hall

30

Priority of Law in the U.S.

The U.S. Constitution and treaties take precedence over all other laws. Federal statutes take precedence over federal regulations. Valid federal law takes precedence over conflicting state or local law.

2010 Pearson Education, Inc., publishing as Prentice-Hall

31

Priority of Law in the U.S. (continued)

State constitutions rank as the highest state law. State statutes take precedence over state regulations. Valid state law takes precedence over local laws.

2010 Pearson Education, Inc., publishing as Prentice-Hall

32