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Commercial Law (Mgmt 348) Course Introduction/The Legal Environment of Business (Chapter 1) Professor Charles H. Smith Spring 2011. Introduction. Introduce myself/course. Take roll/adds. Review course syllabus. My e-mail (best way to contact me) – [email protected] .

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Commercial Law (Mgmt 348) Course Introduction/The Legal Environment of Business (Chapter 1)

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Commercial law mgmt 348 course introduction the legal environment of business chapter 1

Commercial Law (Mgmt 348)

Course Introduction/The Legal Environment of Business (Chapter 1)

Professor Charles H. Smith

Spring 2011


Introduction

Introduction

  • Introduce myself/course.

  • Take roll/adds.

  • Review course syllabus.

  • My e-mail (best way to contact me) – [email protected]

  • My website – http://faculty.fullerton.edu/chsmith.

  • Warning/disclaimer

    • Any legal topic can feature matter which is illegal, unethical or both.

    • Cases and examples will be presented for purpose of education, not for “shock” value.


Legal research and writing

Legal Research and Writing

  • One of the course requirements will be a paper which will feature (among other things) legal research and writing.

  • Best legal research website is LexisNexis Academic which can be found on the CSUF website

    • Start on www.fullerton.edu homepage.

    • Click on Library link (left side of page).

    • Under Quick Links, click on Find Databases link (left side of page).

    • Click on L (top of page).

    • Click on LexisNexis Academic link.

    • Input and enter your username and password.

    • Click on US Legal link (left side of page) and list of sources of legal authorities will appear.


Legal research and writing cont

Legal Research and Writing cont.

  • Search tips

    • Case citation – format is volume number, then abbreviation of publication, then first page of case; e.g., 3 Cal.4th 1 stands for the case found in volume 3 of the California Reports (4th series), starting on page 1.

    • Key words – start with broad terms and recent publications (e.g., “arbitration” within the last 6 months), then use more specific terms (e.g., “arbitration” and “wrongful termination”) and search for older publications if necessary.

  • Organize your written presentation through use of headings, new paragraphs, proper grammar/punctuation/spelling, and the following format – introduction/body of text/conclusion.


Constitutions

Constitutions

  • The United States Constitution is the “supreme law of the land” so all other laws (such as statutes) must be consistent with it.

  • Everyone in the USA is subject to two constitutions – U.S. plus the state in which person/business is located.

  • Constitutions often use very general or even vague language so open to interpretation.

  • Student examples.


Statutes

Statutes

  • Statutes are laws created by legislatures

    • Federal – Congress.

    • State – California state legislature.

    • Local – OC Board of Supervisors, City Council.

    • Interpretation of statutes usually based on “plain meaning” of language used but can also be based on judicial interpretation of same or similar language found in another statute.

    • Student examples.


Case or common law

Case or Common Law

  • American legal system is often called a “common law” system.

  • Most of the citations (references) to rules of law by judges, lawyers, professors, students, etc. is done by referring to cases.

  • Student examples.


Case or common law cont

Case or Common Law cont.

  • A case is ordinarily made up of

    • Description of the facts.

    • Statement of the issue(s) – case may involve just one or perhaps many issues.

    • Court’s ruling(s) (or “holding(s)”) as to those issues.

    • Court’s reasoning as to its rulings/holding(s).


The rule of stare decisis

The Rule of Stare Decisis

  • Stare decisis is a Latin phrase which means “to stand on decided cases.”

  • In practice, this requires courts to apply previously-decided cases (“precedent”) from same jurisdiction to current legal disputes featuring same or similar law and/or facts.

  • In other words, the court does not have the discretion to contradict precedent.

  • Student examples.


Stare decisis cont

Stare Decisiscont.

  • Mandatory authority – precedent based on same law

    • Should conclusively decide the issue.

    • Example – dispute in which the plaintiff is seeking a preliminary injunction requires the plaintiff to show probability of prevailing on the merits (rule stated in many cases).

  • Persuasive authority – precedent based on similar law

    • May be helpful in deciding the issue.

    • Example – issue was statutory deadline to perform an act of 30 days before “the trial date”; some other unrelated statutes (and cases interpreting those statutes) refer to deadline of 30 days before “the initial trial date”; we argued that lack of the word “initial” meant the statutory deadline to perform was extended every time the “trial date” to continued into the future.


Stare decisis cont1

Stare Decisiscont.

  • What to do if no mandatory authority which would conclusively decide the issue?

    • First, try persuasive authority since it is the decision of a court and the court hearing the current case may be more comfortable with an analogy to a legal rule.

    • However, public policy, data or concepts from social or hard sciences, or equity (fairness) can all be useful; e.g., Griggs v. Duke Power Co.


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