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1、,LEGAL HERITAGE ANDTHE INFORMATION AGE,2010 Pearson Education,Inc.,publishing as Prentice-Hall,CHAPTER 1,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 interfe
2、rence from others.The law forbids persons from engaging in certain undesirable activities.,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 co
3、nsequences.,Functions of Law,Keeping the peaceShaping moral standardsPromoting social justiceMaintaining the status quoFacilitating orderly changeFacilitating planningProviding a basis for compromiseMaximizing individual freedom,Functions of Law(continued),Facilitating planninge.g.,well-designed com
4、mercial laws allow businesses to plan their activities,allocate their resources,and assess their risksMaximizing individual freedome.g.,the rights of freedom of speech,religion,and association granted by the First Amendment to the U.S.Constitution,Qualities of Law,FairnessThe American legal system i
5、s one of the most comprehensive,fair,and democratic systems of law ever developed and enforced.,Qualities of Law(continued),FlexibilityU.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 Educat
6、ionE.g.,new laws on cybercrimes and cybertorts,Jurisprudence:The philosophy or science of the law,Schools of Jurisprudential Thought,Natural Law School,Historical School,Analytical School,Sociological School,Command School,Critical Legal Studies School,Law and Economics School,Schools of Jurispruden
7、tial Thought(continued),Natural Law SchoolLaw is based on what is“correct.”Law should be based on morality and ethics.Historical SchoolLaw is an aggregate of social traditions and customs.Analytical SchoolLaw is shaped by logic.,Schools of Jurisprudential Thought(continued),Sociological SchoolLaw is
8、 a means of achieving and advancing certain sociological goals.Command SchoolLaw is a set of rules developed,communicated,and enforced by the ruling party.,Schools of Jurisprudential Thought(continued),Critical Legal Studies SchoolLegal rules as unnecessary,with legal disputes to be solved by applyi
9、ng arbitrary rules based on fairness.Law and Economics SchoolPromoting market efficiency as the central concern of legal decision making.,History of American Law,English system of law generally adopted Became the foundation from which American judges developed our common law,English Common Law,Devel
10、oped by judges who issued their opinions when deciding cases.Principles announced in these cases became precedent for later judges deciding similar cases.,English Common Law(continued),Law CourtsUniform system of courts emphasizing form over substanceGranted only monetary damagesCourts of Chancery(e
11、quity courts)Remedies shaped to fit each situationMerchant CourtsSolved commercial disputes based on trade practices,Romano-GermanicCivil Law System,Roman Twelve Tables(450 B.C.)Corpus Juris Civilis(A.D.534)Napoleonic Code(1804)German Civil Code(1896),Civil Law System(continued),Civil Code and parli
12、amentary 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.,In some civil law countries,court decisions do not have the force of law.,Adoption of Engl
13、ish 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,Adoption of English Common Law in America(continued),In the U.S.,law,equity,and merchant courts have been merged.Most U.S
14、.courts permit the aggrieved party to seek both law and equitable orders and remedies.,Sources of Law in the U.S.,Constitutions,Codified Law,Treaties,Executive Orders,Agency Rules&Regulations,Judicial Decisions,Sources of Law in the U.S.(continued),U.S.Constitution“Supreme law of the land”Establishe
15、d structure of federal government Legislative branchExecutive branchJudicial branchEnumerates federal powersReserves all other powers to statesState Constitutions,Sources of Law in the U.S.(continued),TreatiesThe President,with the advice and consent of the Senate,may enter into treaties with foreig
16、n governments.Congress passes statutes to fulfill treaty requirements.,Sources of Law in the U.S.(continued),Codified law:Statutes and ordinancesThe U.S.Congress enacts federal statutes.State legislatures enact state statutes.Municipalities and local government bodies enact ordinances.,Sources of La
17、w in the U.S.(continued),Executive ordersIssued by the president and state governorsE.g.,order requiring federal agencies to buy more hybrid vehiclesE.g.,order allowing oil drilling on federal landPower derived from express delegation from legislative branch or implied from constitutional powers,Sou
18、rces of Law in the U.S.(continued),Regulations and Orders of Administrative AgenciesEmpowered by legislative and executive branches of government Adopt rules and regulationsEnforce statutesHear and decide disputesMany agencies regulate businessE.g.,SEC,FTC,DOT,Sources of Law in the U.S.(continued),J
19、udicial decisionsCourts decide controversies.Judicial decisions usually state the rationale used by the court in reaching that decision.,Doctrine of Stare Decisis,Based on the common law tradition,past court decisions become precedent for deciding future cases.Lower courts follow the precedent estab
20、lished by higher courts.,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.,Doctrine of Stare Decisis(contin
21、ued),PurposeUniformityEfficiencyPredictabilityFlexibility(power to depart from or change precedent when warranted),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 prece
22、dence over conflicting state or local law.,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.,COURT SYSTEMS AND JURISDICTION,2010 Pearson Education,Inc.,publi
23、shing as Prentice-Hall,CHAPTER 2,Court Systems in U.S.,Two major systemsFederal court systemCourt systems of the 50 states and the District of ColumbiaEach has jurisdiction to hear different types of lawsuits.,State Court Systems,Limited-jurisdiction trial courts,General-jurisdiction trial courts,In
24、termediate appellate courts,Supreme Court,State Court Systems(continued),Limited-jurisdiction trial courtsHear matters of specialized or limited natureTraffic CourtJuvenile CourtJustice-of-the-peace CourtProbate CourtFamily Law CourtMisdemeanor Criminal CourtSmall Claims Court,State Court Systems(co
25、ntinued),General-jurisdiction trial courtsHear cases of a general nature that are not within the jurisdiction of limited-jurisdiction courtsRecord and store testimony and evidence,State Court Systems(continued),Intermediate Appellate CourtsHear appeals from trial courtsReview trial court record to d
26、etermine if there have been any errors at trial that would require reversal or modificationNo new testimony or evidence,State Court Systems(continued),Highest State CourtIn most states called“supreme court”Hears appeals from intermediate state courts and certain trial courtsNo new testimony or evide
27、nceDecisions of state supreme courts are final,unless a question of law is involved that is appealable to the U.S.Supreme Court,Typical State Court System,State Trial Courts of General Jurisdiction,State Supreme Court,State Appeals Courts,Civil Division,Criminal Division,Probate Division,Domestic Re
28、lations Division,Juvenile Division,Small Claims Courts,Municipal Courts,Justice of the Peace Courts,Appeal to,U.S.Supreme Court,Federal Court System,Special Federal Courts,U.S.District Courts,U.S.Courts of Appeals,U.S.Supreme Court,Federal Court System(continued),Special Federal CourtsHear matters o
29、f specialized or limited jurisdictionTax CourtCourt of Federal ClaimsCourt of International TradeBankruptcy CourtCourt of Appeals for Armed ServicesCourt of Appeals for Veterans Claims,Federal Court System(continued),U.S.District CourtsTrial courts of general jurisdictionImpanel juriesReceive eviden
30、ceHear testimonyDecide casesMost federal cases originate in federal district courtAt least one district court in each stateJudges have lifetime appointments,Federal Court System(continued),U.S.Courts of AppealsIntermediate appellate courtsHear appeals from the district courts located in their circui
31、t13 CircuitsLifetime appointments,Federal Court System(continued),U.S.Courts of Appeals(continued)3-judge panel or en bancReview the record of lower courts or administrative agency proceedingsDetermine if there has been any error of law that would warrant reversal or modification of the lower court
32、decision,Federal Court System(continued),U.S.Supreme CourtHears appeals from:Federal Circuit Courts of Appeals Federal District Courts,under certain circumstancesSpecial federal courtsHighest state courtsNo new evidence or testimony 9 Justices with lifetime appointments,The Federal Court System(cont
33、inued),U.S.Supreme Court(continued)The lower court record is reviewed to determine whether there has been an error that warrants a reversal or modification of the decision,Federal Court System(continued),U.S.Supreme Court(continued)Accepts about 100 cases each yearMay issue:Unanimous decisionMajorit
34、y decisionPlurality decisionTie decisionJustices may concur or dissentDecision of Court is final,Federal Court System(continued),Petition for CertioraiA petition asking the Supreme Court to hear case.,Writ of CertioraiAn official notice that the Supreme Court will review a case.,Federal Court System
35、(continued),U.S.Supreme Court,U.S.Courts of Appeals(11 Territorial Circuits&D.C.Circuit),U.S.Courts of Appeals for the Federal Circuit,Many Federal Adminis-trative Agencies,U.S.District Courts(96 Districts),U.S.Tax Court,U.S.Bankruptcy Courts,U.S.Claims Court,U.S.Court of International Trade,U.S.Pat
36、ent and Trademark Office,Jurisdiction of Federal Courts,Federal questionsU.S.ConstitutionTreatiesFederal statutes and regulationsDiversity of citizenshipCitizens of different statesAt least$75,000 in controversy,Jurisdiction of State Courts,Cases that federal courts do not have jurisdiction to hear(
37、e.g.,probate cases)Matters involving state lawReal estateBusiness lawSales and lease agreementsNegotiable instrumentsMatters involving federal law,Jurisdiction of Federal and State Courts,Exclusive State Jurisdiction,Matters not subject to federal jurisdiction,Exclusive Federal Jurisdiction,Admiralt
38、yAntitrustBankruptcyCopyrightFederal CrimesPatentsSuits against the U.S.Other specified federal statutes,Concurrent Jurisdiction,Federal questionsDiversity of citizenship cases,Personal Jurisdiction of Courts,Standing to Sue,Jurisdiction,Venue,Standing to Sue,Plaintiff must have a stake in the outco
39、me of caseE.g.,one cannot sue on behalf of a friend who has been injured,In Personam Jurisdiction,Personal jurisdiction exists over any plaintiff who files a lawsuit.Personal jurisdiction exists over defendant who is within the boundaries of the stateCorporation is subject to personal jurisdiction i
40、n any state where it is incorporated,has principal office,or does business,In Personam Jurisdiction(continued),Defendant is served notice of the lawsuitBy personal service of summonsBy mailing summonsBy publication,In Personam Jurisdiction(continued),Long-Arm Statute allows state courts to obtain pe
41、rsonal jurisdiction over persons or businesses located in another stateAllows summons to be served in other statesMust have minimum contacts with stateMust uphold notions of fair play and substantial justice,In Rem and Quasi In Rem Jurisdiction,In rem:Jurisdiction over the property of the lawsuit wi
42、thin state bordersQuasi in rem:Attach property located in another state,Venue,Court near location in which incident occurred or where parties reside.Several courts may have jurisdictionWhich one is proper venue?E.g.,crime occurred in California,so California court is likely venueMay be change of venue to avoid pretrial publicity that may have prejudiced potential jurors.,Forum Selection,Choice-of-Law Clauses,Parties may specify in a contract what court to use(forum selection)They may also agree on the states or countrys law that will apply to the contract(choice of law),
