CHAPTER 1

1. CHAPTER 1 Legal Heritage and the Information Age © 2010 Pearson Education, Inc., publishing as Prentice-Hall

2. 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.

3. 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.

4. 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

5. Functions of Law(continued) Facilitating planning 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

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

7. 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

8. Jurisprudence: The philosophy or science of the law

9. Schools of Jurisprudential Thought Natural Law School Historical School Analytical School Sociological School Command School Law and Economics School Critical Legal Studies School

10. 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.

11. 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.

12. Schools of Jurisprudential Thought(continued) Critical Legal Studies School 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.

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

14. 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.

15. 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

16. Romano-GermanicCivil Law System Roman Twelve Tables (450 B.C.) Corpus Juris Civilis (A.D. 534) Napoleonic Code (1804) German Civil Code (1896)

17. 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.

18. Insome civil law countries, court decisions do not have the force of law.

19. 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

20. 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.

21. Sources of Law in the U.S. Constitutions Codified Law Treaties Executive Orders Agency Rules & Regulations Judicial Decisions

22. 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

23. 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.

24. 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.

25. 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

26. 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

27. Sources of Law in the U.S.(continued) Judicial decisions Courts decide controversies. Judicial decisions usually state the rationale used by the court in reaching that decision.

28. 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.

29. 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.

30. Doctrine of Stare Decisis(continued) Purpose Uniformity Efficiency Predictability Flexibility (power to depart from or change precedent when warranted)

31. 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.

32. 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.