Chapter 1
Introduction

Law is a set of guidelines that help maintain
order in a society

A civilized society is one that no longer settles
private disputes through private violence
I. Legal Philosophies
Natural Law
 Legal Positivism
 Legal Realism

A. Natural Law

Right or Wrong

Belief that there are universal laws guided by a
moral reasoning that enable all to know the
difference between right and wrong
B. Positive Law

Ruling Authority

A just law is one created by the sovereign, or
ruling authority

A positivist believes that there is no unjust law if
it was enacted by the recognized political
authority
C. Legal Realism

Decision-Maker’s Discretion

Concerned with results

Recognizes that lawmakers are influenced by
many factors, and that these influences affect
the decision being made
II. Four Sources of Law
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Constitutions
Statutory Law
Common Law and Judicial Decisions
Administrative Law
A. Constitutions

U.S. Constitution has been supreme law of the
land since 1787

All federal and state laws must be consistent
with the Constitution to be enforced

The first three Articles of the U.S. Constitution
establish the basic structure of the federal
government
Article I 
Creates the congress

Senate and House of Representatives

Vests the congress with legislative power
Article II 
Establishes the presidency and its duties
Article III 
Creates the judiciary

Each branch is responsible for a different
governmental duty

Separation of powers between branches serves
as a check and balance

Separation stabilizes our government
B. Statutory Law - Codes

Legislative branch provides statutory law

Each year legislatures add to their statutory
laws of their state

These statutes are placed in codes that are
compilations of statutes

When a law has been placed into one of the
existing codes, that law has been CODIFIED
California has 29 Codes

Sections within the California Codes made be referred
to by the symbol “ § “, or the word “Section.”
Uniform Commercial Code

As modern society becomes more complex, uniform statutory laws
throughout the states have become a necessity

The American Law Institute and the National Conference of
Commissions on Uniform State Laws recommend laws where
uniformity would be a benefit

The UNIFORM COMMERCIAL CODE (UCC) addresses topics of law
involved in commercial transactions

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Sales law
Commercial paper
Secured transactions in personal property
Statutory laws that occur at local levels are called ORDINANCES

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Dog leash laws
Laws dealing with signs
Land use zoning laws
C. Common Law and Judicial
Decisions

Common law’s origins date back to early English history with
appointing “judges” to act on behalf of the sovereign when resolving
disputes

COMMON LAW is a general body of law that began in England based
on court decisions, customs, and usage in the community rather than
codified law

Many of today’s legal principles had their origins in the common law

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Contract law
Tort law
Agency law
Common law is “judge-made”; it is considered unwritten law, while
statutory law is written
Judicial Decisions

In the United States, JUDICIAL DECISIONS (case law)
are produced when a judge decides a case and
announces the reasoning behind the ruling

Previous court decisions have become “precedent”
for deciding future cases

The legal principle governing precedent is called STARE
DECISIS which provides a degree of certainty and
stability to society and makes the laws predictable

Precedents are to be used when the facts of a case is
similar to the precedent case
Judicial Decisions (cont.)

One limitation under Article II of the U.S. Constitution
states that there must be a “case in controversy” before
the legal issue may be considered…a judge is not able
to call a dispute into his courtroom for resolution

Decisions rendered by appellate judges are published
in a set of books called REPORTERS

RESTATEMENTS are published by the American Law
Institute which provide coverage of the common law
areas such as torts, contracts, agency and property
1. Judicial Stability and Judicial
Flexibility

Requiring courts to follow precedent leads to judicial
stability

When precedent cannot be found to help resolve an
existing dispute, the court will try to use a similar
previous decision as a basis for logical or rational
application to resolve the current dispute

“Where the reason is the same, the rule should be the
same.”

Judicial flexibility helps when substantial justice might
require that the court ignore or bend the precedent in
order to reach a proper or just result
D. Administrative Law

Administrative law was created by necessity in order to have a more
proactive mechanism for regulating business activities

The ADMINSTRATIVE AGENCY, as part of the executive branch,
appeared as Congress realized that there was a need for more
specialized oversight of various society functions

EXECUTIVE ORDERS, when issued by the president, governor, or
head of a local government, are another type of law issued by the
executive branch as a means of enforcing existing laws

INTERNATIONAL TREATIES are another type of law created by the
federal executive branch


Executory
Self-Executing
Foreign Corrupt
Practices Act 1977 (1988)

Makes it a crime when an officer, director, employee,
agent, or a stockholder acting on behalf of the business
uses the mail or any means of interstate commerce to
offer to pay, or actually pay, anything of value to a
foreign official, foreign political party official, or foreign
political candidate, when that payment is meant to
influence that official in order to obtain or retain
business for the U.S. company

Willful violations of the FCPA


$2,000,000 fines for business
$100,000 fines for individuals and imprisonment up to 5 yrs
III. Classifications of Law

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Substantive or procedural
Public or private
Civil or criminal
A. Substantive vs. Procedural

Substantive laws affect individuals by either granting
them legal rights or imposing legal duties on them

Laws that prohibit the possession of illegal substances
are SUBSTANTIVE in nature, since they impose a duty
on individuals to not possess those illegal substances.

PROCEDURAL LAWS enforce the rights or duties
granted by the substantive laws by imposing a structure
that must be followed when establishing or enforcing
substantive laws

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RULES OF CIVIL PROCEDURE
RULES OF EVIDENCE
B. Private or Public

The body of law governing interaction between
individuals is considered PRIVATE LAW

PUBLIC LAW deals with how the government is
organized and how it interacts with the people of the
country
C. Civil or Criminal

CIVIL LAW is concerned with how individuals interact
with each other

CRIMINAL LAW is concerned with behavior that is
considered unacceptable to society at large
D. Law vs. Equity

When a person is seeking monetary damages, he is
seeking a LEGAL REMEDY

A REMEDY IN EQUITY attempts to create fairness and
justice for a person who has been harmed and money
damages are not sufficient
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SPECIFIC PERFORMANCE
RESCISSION
INJUNCTION
REFORMATION
RESTITUTION
IV. Role of Attorneys in
the Legal Process


Finding an Attorney
Fee Arrangement
A. Finding An Attorney

Recommendations from family and friends

State Bar-certified lawyer referral services

Yellow Pages

Local Bar Association
B. Fee Arrangement

CONTINGENCY FEE AGREEMENTS – the attorney agrees to
take a percentage of the money you win in a lawsuit


Must be in writing and state the percentage agreed to
Agreement should contain a statement of the general nature of
the legal services provided to the client

NON-CONTINGENCY AGREEMENTS – use hourly fees, fixed
fees, or a retainer
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FEE DISPUTES

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Switch attorneys and have files sent over
Try fee arbitration
Report attorney to State Bar Association
Sue your former attorney
V. Briefing a Case
Reading and Briefing a Case

Locate the NAME OF THE CASE and where to locate
it, e.g.


Li v. Yellow Cab Company of California
55 Cal.3d 804,532 P.2d 1226, 119 Cal.Rptr. 858 (1975)

FACTS - summarize the facts of the case

ISSUES - determine the issues present in the case

DECISION - the court’s ruling

REASONING - the court’s reasoning is then
analyzed
Chapter Summary

Legal Philosophies

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Classifications of Law

Natural Law
Positive Law
Legal Realism

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
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Sources of Law




Constitutions
Statutory Law
Common Law & Judicial
Decisions
Administrative Law

Role of Attorneys in
the Legal Process



Substantive vs. Procedural
Private or Public
Civil or Criminal
Law vs. Equity
Finding An Attorney
Fee Arrangement
Briefing a Case