Power Point Slides to Accompany CONTEMPORARY BUSINESS AND

Power. Point Slides to Accompany CONTEMPORARY BUSINESS AND ONLINE COMMERCE LAW 5 th Edition by Henry R. Cheeseman Chapter 1 Legal Heritage and Critical Legal Thinking Slides developed by Les Wiletzky and Associates Copyright © 2006 by Pearson Prentice-Hall. All rights reserved.

What Is Law? n The law consists of rules that regulate the conduct of individuals, businesses, and other organizations within society n It is intended to protect persons and their property against unwanted interference from others n The law forbids persons from engaging in certain undesirable activities Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -2

Definition of Law n That which must be obeyed and followed by citizens subject to sanctions or legal consequences n A body of rules of action or conduct prescribed by controlling authority, and having binding legal force Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -3

Functions of Law (1 of 3) n Keeping the peace n Including making certain activities crimes n Shaping moral standards n e. g. , enacting laws that discourage drug and alcohol abuse n Promoting social justice n e. g. , enacting statutes that prohibit discrimination in employment Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -4

Functions of Law (2 of 3) n Maintaining the status quo n e. g. , passing laws preventing the forceful overthrow of the government n Facilitating orderly change n e. g. , passing statutes only after considerable study, debate, and public input n Providing a basis for compromise n approximately 90 percent of all lawsuits are settled prior to trial Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -5

Functions of Law (3 of 3) n Facilitating planning n e. g. , well-designed commercial laws allow businesses to plan their activities, allocate their resources, and assess their risks n Maximizing individual freedom n e. g. , the rights of freedom of speech, religion, and association granted by the First Amendment to the U. S. Constitution Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -6

Qualities of the Law Fairness of the Law n The American legal system is one of the most comprehensive, fair, and democratic systems of law ever developed and enforced Flexibility of the Law n U. S. law evolves and changes along with the norms of society, technology, and the growth and expansion of commerce in the United States and the world Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -7

Landmark U. S. Supreme Court Case: Brown v. Board of Education (1954) n Supreme Court reversed prior precedent of Plessy v. Ferguson (1896) n Court held that the separate but equal doctrine violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution n The case demonstrates that one Supreme Court can overrule prior Supreme Court cases to promote justice Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -8

Schools of Jurisprudential Thought (1 of 3) n Natural Law School n Postulates that law is based on what is “correct” n Law should be based on morality and ethics n Historical School n Believes that law is an aggregate of social traditions and customs n Analytical School n Maintains that law is shaped by logic Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 -9

Schools of Jurisprudential Thought (2 of 3) n Sociological School n Asserts that law is a means of achieving and advancing certain sociological goals n Command School n Believes that law is a set of rules developed, communicated, and enforced by the ruling party Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 10

Schools of Jurisprudential Thought (3 of 3) n Critical Legal Studies School n Maintains that legal rules are unnecessary and that legal disputes should be solved by applying arbitrary rules based on fairness n Law and Economics School n Believes that promoting market efficiency should be the central concern of legal decision making Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 11

Contemporary Environment: Feminist Legal Theory n Feminist Jurisprudence n Female perspective should be taken into account when legislators and judges develop, interpret, and apply the law n The traditional “reasonable man standard” in American law is viewed as being gender biased Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 12

History of American Law n When the American colonies were first settled, the English system of law was generally adopted as the system of jurisprudence n This was the foundation from which American judges developed a common law in America Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 13

English Common Law (1 of 2) n Law developed by judges who issued their opinions when deciding a case n The principles announced in these cases became precedent for later judges deciding similar cases Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 14

English Common Law (2 of 2) n The English common law can be divided into cases decided by the: Law courts n Equity courts (Court of Chancery) n Merchant courts n Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 15

Adoption of English Common Law in America n All the states except Louisiana base their legal systems on the English common law n In the U. S. , the law, equity, and merchant courts have been merged n Most U. S. courts permit the aggrieved party to seek both law and equitable orders and remedies Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 16

Sources of Law in the United States (1 of 5) n Constitutions n The U. S. Constitution establishes the federal government and enumerates its powers n Powers not given to the federal government are reserved to the states n State constitutions establish state governments and enumerate their powers Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 17

Sources of Law in the United States (2 of 5) n Codified law n Statutes are enacted by Congress and state legislatures n Ordinances are enacted by municipalities and local government agencies n Both establish courses of conduct that must be followed by covered parties Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 18

Sources of Law in the United States (3 of 5) n Treaties n The president, with the advice and consent of the Senate, may enter into treaties with foreign governments n Executive orders n Issued by the president and governors of states n They regulate the conduct of covered parties Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 19

Sources of Law in the United States (4 of 5) n Administrative agency regulations and orders Administrative agencies are created by the legislative and executive branches of government n They may adopt administrative regulations and issue orders that regulate the conduct of covered parties n Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 20

Sources of Law in the United States (5 of 5) n Judicial decisions n Federal and state courts decide controversies n In doing so, they issue decisions that state the holding of each case and the reasoning used by the court in reaching its decision Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 21

The Doctrine of Stare Decisis (1 of 2) n Based on the common law tradition, past court decisions become precedent for deciding future cases n Lower courts must follow the precedent established by higher courts Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 22

The Doctrine of Stare Decisis (2 of 2) n Thus, all federal and state courts in the U. S. must follow the precedents established by U. S. Supreme Court decisions n Adherence to precedent is called stare decisis Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 23

Priority of Law in the United States (1 of 2) n The U. S. Constitution and treaties take precedence over all other laws n Federal statutes take precedence over federal regulations n Valid federal law takes precedence over conflicting state or local law Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 24

Priority of Law in the United States (2 of 2) n State constitutions rank as the highest state law n State statutes take precedence over state regulations n Valid state law takes precedence over local laws Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 25

International Law: The Civil Law System (1 of 2) n Romano-Germanic civil law system is the model for countries adopting civil codes n The Civil Code and the parliamentary statutes that expand interpret it are the sole sources of law in most civil law countries n The adjudication of a case is the application of the code or the statutes to a particular set of facts Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 26

International Law: The Civil Law System (2 of 2) n In some civil law countries, court decisions do not have the force of law n A contrast to Anglo-American common law where laws are created by the judicial system as well as by congressional legislation Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 27

Critical Legal Thinking n The process of: n specifying the issue presented by a case; n identifying the key facts in the case and applicable law; n applying the law to the facts to come to a conclusion that answers the issue presented Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 28

Key Terms n Plaintiff: the party who originally brought the lawsuit n Defendant: the party against whom the lawsuit has been brought n Petitioner or Appellant: the party who has appealed the decision of the trial court or lower court n Respondent or Appellee: the party who must answer the petitioner’s appeal Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 1 - 29