The Legal and
International Foundations
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• Law is a body of enforceable rules governing relationships among individuals and between individuals and their society.
• Three important schools of legal thought:
– Natural law tradition.
– Legal positivism.
– Legal realism.
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• One of the oldest and most significant schools of legal thought.
• Those who believe in natural law hold there is a universal law applicable to all human beings and that this law is of a higher order than positive, or conventional law.
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• A school of legal thought centered on the assumption that there is no law higher than the laws created by the government.
• Laws must be obeyed, even if they are unjust, to prevent anarchy.
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• A popular school of legal thought during the 1920s and 1930s.
• Legal realists generally advocated a less abstract and more realistic approach to the law, an approach that would take into account customary practices and the circumstances in which transactions take place.
• The school left a lasting imprint on
American jurisprudence.
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• The law impacts every-day business transactions.
• Many different laws may affect a single business transaction.
• Ethics and the legal environment.
– What is the relationship?
– What is the relationship between ethics and profits?
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Constitutional Law Statutory Law
Administrative Law
Case Law and
Common Law Doctrines
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• Which source of law takes priority in the following situations, and why?
– A federal statute conflicts with the U.S.
Constitution.
– A federal statute conflicts with a state constitution.
– A state statute conflicts with the common law of that state.
– A state constitutional amendment conflicts with the
U.S. Constitution.
– A federal administrative regulation conflicts with a state constitution.
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• The law as expressed in the U.S.
Constitution and the various state constitutions.
• The U.S. Constitution is the supreme law of the land.
• State constitutions are supreme within state borders to the extent that they do not violate the U.S. Constitution or a federal law.
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• Laws or ordinances created by federal, state, and local legislatures and governing bodies.
• None of these laws can violate the U.S.
Constitution or the relevant state constitutions.
• Uniform laws, when adopted by a state legislature, become statutory law in that state.
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• The rules, orders, regulations, and decisions of federal, state, or local government administrative agencies.
• Federal administrative agencies are created by enabling legislation enacted by the U.S.
Congress.
• Agency functions include:
– Rulemaking.
– Investigation and enforcement.
– Adjudication.
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• Judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies.
• The common law, the doctrines and principles embodied in case law, governs all areas not covered by statutory law or agency regulations issued to implement various statutes.
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• The Common Law originated in medieval England with the creation of the king’s courts, or curia regis , and the development of a body of rules that were applied throughout the land.
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• A doctrine under which judges “stand on decided cases,” or follow the rule of precedent, in deciding cases.
•
Stare decisis is the cornerstone of the common law tradition.
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• Remedies at law:
– Money, property, land or something else of value.
• Remedies in equity:
– Remedies that are granted when the remedies at law are unavailable or inadequate.
• Equitable Principles and Maxims.
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• The law may be broken down according to several classification systems, such as:
– Substantive vs. Procedural law.
– Civil vs. Criminal law.
– Federal vs. State law.
– National vs. International law.
– Private vs. Public law.
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• Civil law spells out rights and duties and relief available for injury to private parties.
– Usually the remedy is money damages.
• Criminal is injury to the society as a whole.
– Remedy is usually prison and/or fines.
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• Increasingly, U.S. businesses are engaging in transactions that extend beyond our national borders.
• National law vs. International law.
– What’s the difference?
– Key difference is that national law can be enforced by government authorities.
• What government can enforce international law?
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• Definition: law that pertains to a particular nation.
• Most nations today have either a common law system or a civil law system.
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• Generally, those countries that were once colonies of Great Britain retained their English common law heritage after they achieved their independence.
• The doctrine of stare decisis is the cornerstone of the common law tradition.
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• Refers to the body of law that governs internet based transactions.
• Not a new law, but new applications of law.
• Internet Jurisdiction and the Internet.
– Minimum contacts requirement.
– Issues in international jurisdiction.
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• A legal system stemming from Roman “code law,” in which the primary source of law is a statutory code—an ordered grouping of legal principles enacted into law by a legislature or governing body.
• Precedents are not binding in a civil law system because they do not follow the doctrine of stare decisis .
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• A body of written and unwritten laws observed by independent nations and governing the acts of individuals as well as governments.
• Sources of international law include:
– National laws.
– Customs.
– Treaties.
– International organizations and conferences.
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• Federal statutes
– Are found in the United States Code (U.S.C.).
• State statutes
– Are found in state statutes or codes such as:
• 13 Pennsylvania consolidated statutes section 1101.
• California Commercial Code Section 1101.
• Federal regulations
– Are compiled in the Code of Federal regulations
(C.F.R.).
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• In order to understand how to find case law, one must first understand the basic organizational structure of the court system.
• In the U.S. there are two types of courts:
– Federal courts.
– State courts.
• Both systems consist of trial courts, appellate (reviewing) courts, and supreme courts.
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• Most state trial court decisions are not published.
• Written decisions of appellate, or reviewing, courts are published in volumes called reports or reporters.
• The most commonly used reporters are those of the national reporter system, which divides the states into geographic areas.
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• Federal district court decisions are published in the federal supplement (F. Supp.).
• Federal circuit courts of appeals decisions are published in the federal reporter (F., F.2d, or F.3d).
• United States Supreme Court decisions are published in one of three sources:
– United States reports (U.S.)
– Supreme Court reporter (S.Ct.)
– Lawyer’s edition of the Supreme Court reports
(L.Ed.)
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• Case law is critical to decision making in the business context because businesses must operate within the boundaries established by law.
• The first step in analyzing any case is to carefully read the facts to identify each party.
–
Beware!
Although at the trial level, the plaintiff is usually listed first (Adams v.
Jones), it is often impossible to distinguish the plaintiff from the defendant in the title of a reported appellate court decision.
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• Plaintiffs and Defendants.
• Appellants and Appellees.
• Judges and Justices.
• Decisions and Opinions.
• Abbreviations.
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• You may find it helpful to diagram the facts of a case or problem using symbols and arrows to show who is suing whom.
• Common symbols include:
– to represent the plaintiff.
– to represent the defendant.
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• 256 Neb. 170, 589 N.W.2d 318 (1999).
• 75 Cal. App. 4th, 89 Cal. Rptr.2d 146
(1999).
• 85 N.Y.2d 549, 650 N.E.2d 829, 626
N.Y.S.2d 982 (1995).
• 236 Ga.App. 582, 512 S.E.2d 27 (1999).
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• 189 U.S. 420, 119 S.Ct. 1961, 144
L.Ed.2d 319 (1999).
• 177 F.3d 114 (2d Cir. 1999).
• 38 F.Supp. 2d 1233 (D.Colo. 1999).
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