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What is the difference between remedies at law and remedies in equity? ... civil law and criminal law? Copyright 2008 by West Legal Studies in Business A Division ...

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BUSINESS LAW TODAY Standard 8th Ed.Roger LeRoy Miller - Institute for University Studies, Arlington, TexasGaylord A. Jentz - University of Texas at Austin, Emeritus

The Legal Environment of Business

Chapter1


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Learning Objectives

  • What are the theories of jurisprudence?

  • What is the Uniform Commercial Code?

  • What is the common law tradition?

  • What is a precedent? When might a court depart from precedent?

  • What is the difference between remedies at law and remedies in equity?

  • What are some of the important differences between civil law and criminal law?


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Natural Law Tradition

  • The Natural Law Tradition

    • Oldest and most significant view of law.

    • Government and legal system should reflect universal moral and ethical principles.

    • These principles are inherent in human nature.

    • They can be discovered through right reason.

    • Basis for natural rights.


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Legal Positivism

  • Legal Positivism (or Positive Law)

    • Applies only to citizens of that nation or society.

    • No higher law than the nation’s highest governing body or court.

    • Laws must be obeyed regardless of whether they are just or unjust.

    • No view of “natural” rights.

    • Morality of a law is irrelevant.


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Historical School

  • The Historical School

    • Emphasizes the evolutionary process of law.

    • Concentrates on the origin and history of legal system.

    • Looks to the past to determine laws for present.

    • Law derives legitimacy from precedent.


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Legal Realism

  • Legal Realism

    • View of law started in 1920’s.

    • Law must be viewed within the social context.

    • Judges should take economic and social realities into account.

    • Sociological jurisprudence tends to be activistic, e.g., civil rights decisions.

    • Do not feel bound by past decisions.


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Business Activities and the Legal Environment

  • Knowledge of “black letter” law is not enough.

  • Many different laws affect a single business transaction.

  • Ethics and business decision making.

    • Ethics: what constitutes right or wrong behavior.



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Sources of American Law

  • Constitutional Law.

    • Found in text and cases arising from federal and state constitutions.

    • U.S. Constitution is the supreme law of the land.

  • Statutory Law.

    • Laws enacted by federal and state legislatures.

    • Local ordinances.

    • Uniform Laws (e.g.,Uniform Commercial Code).


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Sources of American Law

  • Administrative Law.

    • Rulemaking--Rules, orders and decisions of administrative agencies, federal, state and local.

    • Administrative agencies can be independent regulatory agency such as the Food and Drug Administration.

    • Adjudication--agencies make rules, then investigate and enforce the rules in administrative hearings.


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The Common Law Tradition

  • Early English Courts of Law.

    • King’s courts started after Norman conquest of 1066.

    • Established the common law—body of general legal principles applied throughout the English empire.

    • King’s courts used precedent to build the common law.


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Stare Decisis

  • Stare Decisis

    • Practice of deciding new cases based on precedent.

    • A higher court’s decision based on certain facts and law, is a binding authority on lower courts.

    • Helps courts stay efficient.


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Equitable Remedies

  • Remedy: means to enforce a right or compensate for injury to that right.

  • Remedy at Law: in king’s courts, remedies were restricted to damages in either money or property.

  • Equitable Remedy: based on justice and fair dealing a chancery court does what is right: specific performance, injunction, rescission.

  • Plaintiffs (injured party initiating the lawsuit), Defendants (allegedly caused injury).



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Classifications of Law

  • Substantive vs. Procedural Law

    • Substantive: laws that define and regulate rights and duties.

    • Procedural: laws that establish methods for enforcing and protecting rights.

  • Civil Law and Criminal Law

    • Civil: private rights and duties between persons and government.

    • Criminal: public wrongs against society.


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Classifications of Law

  • National and International Law

    • National: laws of a particular nation.

    • Civil vs. Common Law: Civil law countries based on Roman code (e.g., Latin America).

    • International: body of written and unwritten laws observed by nations when dealing with each other.



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Appendix

  • Finding Statutory Law.

    • United States Code (USC).

    • State Statutes.

  • Finding Administrative Law.

    • Code of Federal Regulations (CFR).

  • Finding Case Law (Case Citations).



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Appendix

  • Reading & Understanding Case Law

    • Legal cases are identified by a “legal citation” (or a “cite”) as the example below:

      Nunez v. Carabba’s Italian Grill, Inc., 448 Mass. 170, 859 N.E.2d 801 (2007).

Title: One party is Plaintiff, Appellant or Petitioner, other party is Defendant, Appellee or Respondent. The parties are either italicized or underlined.


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Appendix

  • Reading & Understanding Case Law

    • Legal cases are identified by a “legal citation” (or a “cite”) as the example below:

      Nunez v. Carabba’s Italian Grill, Inc., 448 Mass. 170, 859 N.E.2d 801 (2007).

This is a State Supreme Court Case found in volume 448, page 170 of the Massachussets Reports, OR volume 859, page 801 of the NorthEastern Reporter 2nd.


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