Social & Legal Environment Business

3 page study guide attached, need answers filled in. I have provided the Chapter power point slides to accompany you in find answers easier. please help. 

Chapter 1:

1. Identify 8 purposes of Law: peacekeeping, personal freedom, planning and actualization of reasonable expectations- contracts, promote/protect competition to promote economic growth – antitrust, social justice, environmental protection, system of order – consistency and fairness, promotes good faith dealing among merchants and consumers

2. What is public policy? What is law? What is jurisprudence?

3. Identify 6 sources of American Law; How many articles are in the constitution? Ans: 7; How many amendments are in the constitution? Ans: 27

4. What is Stare Decisis? Precedent? why it is so important in American law?

5. What 4 primary questions should be considered by the court when deciding whether an earlier decision should be overruled? (see t

ext for the list)

6. What is “Equity” in our legal system? What are 2 maxims of equity? What are 2 equitable remedies?

1.) Explain the difference between courts of law and courts of equity and determine which court applies to modern America.

A court of law is a court that bases it decisions strictly on existing laws and rules, while a court of equity, applied the rules of fairness when applications of technical rules resulted in an injustice.

2.) Billy and Bob walk into a Best Buy store and are each caught stealing an iPad. Billy’s parents are well known in the community and as a result the judge gives him 5 hours of community service. Bob on the other hand is known in the town for being a troublemaker and is sentence to a week in prison. Why is this considered unfair?

Under the doctrine of stare decisis, similar cases with similar facts and issues should have the same judicial outcome. Because Billy and Bob were both in the same place at the same time stealing the same thing, the outcome of their trials should have been the same.

7. Identify 4 key public policy objectives in American law that seek to enhance economic activity, commerce and for-profit corporations (promote economic growth, protect workers, promote consumer welfare, promote public welfare, resolve policy conflicts)

8. What is the difference between Civil vs. Criminal Law? Explain the difference between criminal laws and civil laws and give an example of each.

9. What is the difference between Substantive and Procedural Law?

10. What is the difference between Public and Private Law?

11. What form of government do we have in the U.S.? What are the three parts of government and what is the purpose of having these three parts?

12. List 10 rights US citizens have guaranteed to them under the US Constitution.

13. What is a Bill of Attainder? An Ex post facto clause?

14. Give 2 examples of the taxing and spending power of the Federal government.

Chapter 2:

1. What is judicial review? (Marbury v. Madison) What 3 standards does the Court apply when reviewing a government action for constitutional soundness? (rational basis category, intermediate-level scrutiny, or strict scrutiny) What is the difference in these levels of scrutiny?

2. What is Federalism? In McCulloch v. Maryland, the Necessary and proper clause was discussed. What is the importance of this clause in the U.S. Constitution? (hint: this is the national bank case)

3. Explain the Supremacy Clause and Preemption within the context of settling conflicts between the federal government and the states. (City of Burbank – hint the airport case)

4. Commerce Clause: a complete essay answer will explain where Congress gets its power to regulate commerce (the commerce clause of the US constitution); will identify the 3 theories that explain how INTERstate commerce was expanded to include INTRAstate commerce – using the 3 cases as examples, Jones & Laughlin Steel, US v. Filburn (farmer) and Heart of Atlanta Motel + Lopez + Morrison (see text – these are the non economic impact cases) Then REMEMBER to specifically answer what my question is on the exam given fact scenario on the exam. HINT: your answer to Discussion Board #2

Explain the expansion of the Commerce clause (interstate to intrastate) (3 theories, 3 cases, + Lopez, + Morrison – Violence Against Women Act.)

5. Explain First Amendment protections are given to businesses? Or How are businesses in the U.S. impacted by the rights to free speech and free press? Discuss whether or not freedom of speech should be limited on the Internet.

6. What is Due Process? Procedural and substantive? How does due process impact the business environment?

Chapter 3:

1. What is jurisdiction? In rem jurisdiction? Personal jurisdiction? Federal question jurisdiction? Diversity jurisdiction? Venue? What is the difference between venue and jurisdiction? What is a writ of certiorari and how does a party go about getting one?

2. Name the 9 US Supreme Court justices.

3. How is diversity jurisdiction established at the Federal level? (federal question, diversity and concurrent).

4. What is standing? (3)

5. We discussed the International Shoe case…how does this case explain personal jurisdiction, “long arm statutes” and “minimum contacts”?

6. What is the Zippo Standard (passive, interactive and integral)? Explain how jurisdiction is obtained when e-mail is involved (minimum contacts – see Johnson v. King Media). Explain the difference between the country of origin standard and the country of reception standard?

What is an example where one party could not be protected by the Zippo standard?

7. How does a State Appellate Court assess the lower court’s decision?

1) Reviewing the lower court transcripts and rulings

2) Reading documents written by attorneys for each side articulating legal reasons why their side should prevail.

3) Sometimes allowing the attorneys to engage in oral arguments

What are the two parts in the two-part analysis that jurisdiction needs?

1) Subject matter jurisdiction: court’s authority over the dispute between parties

2) Personal jurisdiction: court’s authority over the parties in the dispute

Chapter 4

1. List the steps in the litigation process for resolving disputes – before, during and post – trial.

2. What is Discovery? Types of tools used in discovery?
3. What is Alternative Dispute Resolution? Explain thoroughly 4 different types of ADR (mediation, arbitration, combo or hybrid med-arb, expert evaluation, summary jury trial, executive panel) Explain how ADR can be used as part of business planning.

4. What are the advantages and disadvantages of using ADR? If people truly have a right to “their day in court,” how does ADR affect that?

5. In arbitration, what do the parties need to submit and present to arbitrators? And then how is the decision made?

Chapter 4
Resolving Disputes:
Litigation and
Alternative Dispute
Resolution Options
McGraw-Hill/Irwin
Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved.

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CHAPTER OVERVIEW
The role of dispute resolution in business planning.
The process of using civil litigation to resolve disputes.
Methods of alternative dispute resolution.

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CIVIL LITIGATION
A dispute resolution process where the parties and their counsel argue their view of a civil (noncriminal) controversy in a court of law

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LITIGATION
The odds of a business organization becoming involved in litigation have increased precipitously in recent years.
From 1980 to 2005, the number of civil cases filed in federal courts more than doubled.

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Pre-lawsuit: Demand/Settlement Negotiations

If the issues are relatively simple, this can be a cost-effective method to resolve a dispute fairly and quickly.
Also minimizes publicity.

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Standing
Means that the party asserting the claim:
(1) must have suffered an injury in fact;
(2) suffered harm that is direct, concrete, and individualized;
(3) articulates what legal redress exists to compensate for the injury.

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Parties to a Lawsuit
Plaintiff: The party who initiates a lawsuit by filing a complaint with the clerk of the court against the defendant.
Defendant: The party sued in a civil lawsuit, (a defendant may be called a respondent).

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Pleadings Stage
Complaint and Summons
Answer
Counterclaim
Cross-Claim

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Discovery Stage
Depositions
Interrogatories
Requests for production
Request for Admissions

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Motions Used During Litigation
To Dismiss
For Summary Judgment
To Compel Discovery
To Dismiss for Mistrial
For Judgment as a Matter of Law

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Bridgestone Americas,Inc. v. Mayberry,
854 N.E.2d 355 (Indiana 2006)

Discovery controversy: whether to order information disclosed or not ?
The court must weigh the potential harm of disclosure against the need for the information in reaching a decision.

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Pretrial Conference
The conference is generally held between the attorneys for the parties and the judge.
The primary reason is to encourage settlement.
Second, the court will resolve any outstanding motions.

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Trial
If the case cannot be settled, the parties will eventually go to trial.
The trial generally takes place in front of a judge as the finder of law and with a jury as a finder of fact.

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Jury Selection and Opening
Process of asking potential jurors questions to reveal any prejudices.
The questioning process is known as voir dire.
After the jury is selected, the attorneys present their theory of the case and what they hope to prove to the jury in opening statements.

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Testimony
After the opening statement, the plaintiff’s attorney then asks questions, known as direct examination, of the witnesses.
The defendant’s attorney may then conduct cross-examination of the witnesses.

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Submission of Evidence
Each side also uses its witnesses to introduce relevant evidence, or to:

authenticate documents,
verify physical evidence, or
provide expert testimony accompanied by charts or graphs shown to the jury.

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Closing Arguments
Once the testimony/evidence is presented to the jury, the attorneys sum up the case and try to convince the jury that their version of the case is more compelling.
This is known as a closing argument.

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Charging the Jury
The judge then charges the jury, by giving them instructions on how to work through the process of coming to a factual decision.
The judge will also inform the jury that the standard of proof in a civil case is a preponderance of the evidence.

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Deliberations
After receiving the charge, jurors move to a private room and engage in deliberations.
Although the jury is permitted to send questions to the judge, the jurors are alone in their deliberations.

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Verdict
The jury returns a decision: the verdict.
If, however, the jury cannot agree on a verdict, this is known as a hung jury and the litigants must start the process all over.
Rules for civil litigation frequently do not require a unanimous verdict, so hung juries are rare in a commercial dispute.

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Post-trial Motions and Appeals

Appellate courts engage in judicial review to decide whether any errors were committed during the trial and also have the power to reverse or modify the decisions of trial courts.

*
Students tend to think that one can appeal their case simply because they lost, and need help understanding that appeals are based on legal issues, not factual ones.

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Collecting the Judgment

Collecting judgments may sometimes be difficult, especially if the defendant’s assets are tied up in nonliquid forms such as real estate, or are exempt from claims of creditors through a bankruptcy filing.

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ALTERNATIVE DISPUTE RESOLUTION
Increasingly popular due to the following:

Cost
Time
Privacy

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Arbitration

Voluntary or Contractual

vs
Legally mandated

*
Consider explaining the Federal Arbitration Act

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Mediation
Mediation is becoming increasingly common as a cost-efficient form primarily because mediation is relatively informal and does not require as much time or preparation as arbitration.

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Green Tree Financial Corporation v. Randolph, 531 U.S. 70 (2000)
“[W]e have recognized that federal statutory claims can be appropriately resolved through arbitration, and we have enforced agreements to arbitrate that involve such claims.”

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Expert Evaluation
For parties involved in a business dispute where the issues are somewhat complex and related to the intricacies of a certain industry or profession, expert evaluation by an independent expert who recommends a settlement is a popular alternative.

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Hybrid Form of ADR
Sometimes known as med-arb, both parties first submit to mediation for a set period of time (perhaps two days).
If the mediation fails, the process then moves to binding arbitration.

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learning outcomes checklist
4 – 1 Identify the ways in which dispute resolution can be used in business planning.
4- 2 Explain the meaning and purpose of civil litigation as a method of resolving disputes.
4- 3 Articulate the concept of standing.

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learning outcomes checklist
4- 4 Name the stages of litigation and identify the characteristics of each stage.
4- 5 List the methods of alternative dispute resolution (ADR) and potential advantages of using ADR.
4- 6 Distinguish between arbitration and mediation and explain both processes .

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learning outcomes checklist
4- 7 Apply the legal standards for when an arbitration clause may be held invalid.
4- 8 Explain how online dispute resolution can be used to solve small claim disputes.
4 – 9 Provide an example of a hybrid form of alternative dispute resolution.

Chapter 3
The American Judicial
System, Jurisdiction,
and Venue
McGraw-Hill/Irwin
Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved.

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Chapter Overview
The role and structure of the American judicial system.
The function and authority of state and federal courts.
How the law develops through court decisions.
The circumstances when a court has the authority to hear a certain case.
The appropriate location to resolve disputes.

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ROLE OF THE JUDICIARY
The judiciary has two primary roles:
First, courts adjudicate disputes
Second, certain courts are charged with the responsibility of judicial review

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STRUCTURE OF THE JUDICIARY
State Courts
Federal Courts

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State Courts
The majority of court cases filed in the United States are filed in state courts.
All states have two types of courts: state trial courts and state appellate courts

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Federal Courts
The principal trial courts are the U.S. district courts.
Federal appellate courts are called the U.S. courts of appeal.
Finally, the U.S. Supreme Court is the ultimate arbiter of federal law.

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U.S. Supreme Court
The ultimate arbiters of federal law are the nine justices of the U.S. Supreme Court.
Although the Court has both original and appellate jurisdiction, the primary role of the court is to finalize a legal decision on any given case.

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Writ of certiorari
A discretionary order issued by the Supreme Court (and federal appellate courts) granting a request to argue an appeal.
A party filing for an appeal must file a petition for a writ of certiorari.

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JURISDICTION
Jurisdiction is a court’s authority to decide a particular case based on:
(1) who the parties are, and
(2) the subject matter of the dispute

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VENUE
Venue is a determination of the most appropriate court location for litigating a dispute.

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Jurisdiction and Business Strategy
A cost-benefit analysis involving jurisdictional restrictions may affect the managerial decision-making process when a company contemplates filing a lawsuit.
Litigating disputes in out-of-state courts will increase the costs of litigation.

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Overview of Jurisdiction
Jurisdiction requires a two-part analysis: a court must have both:
(1) subject matter jurisdiction
(2) personal jurisdiction

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Subject Matter Jurisdiction

Authority over the Dispute Based on:
Federal question
Diversity of citizenship

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Personal Jurisdiction

In-State vs. Out-of-State Defendants
State long-arm statute

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Estate of Weingeroff v. Pilatus Aircraft, 566 F.3d 94 (3rd Cir. 2009)

“It is clear that the critical finding is that the defendant purposefully availed itself of the privilege of conducting activities within the forum requires contacts that amount to a deliberate reaching into the forum state to target its citizens.”

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Forum Selection cont’d.
“In the event of any dispute that arises from the performance, breach or any obligations under this contract, the parties agree to litigate any such disputes in the State Court of … as the exclusive venue and both parties hereby voluntarily submit to their exclusive jurisdiction over the matter.”

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Venue
Venue is the legal concept that defines the most appropriate location for the trial within a jurisdiction.
Typically, state statutes provide that venue in a civil case is where the defendant resides or is headquartered.

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Jurisdiction Implications in Cyberspace
Minimum Contacts over the Internet
The Zippo Standard
comprehensive scheme for testing a minimum contacts analysis of personal jurisdiction based on one party’s use of the Internet in its business

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Mink v. AAAA Development LLC, 190 F.3d 333 (5th Cir. 1999)

“We find that the reasoning of Zippo is persuasive and adopt it in this Circuit.”

*
Explain the circuit concept, and what it means when a circuit court makes a ruling.

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E-MAIL AND MINIMUM CONTACTS
A comprehensive scheme for testing a minimum contacts analysis of personal jurisdiction may be based on one party’s use of the Internet and/or email in its business.

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INTERNATIONAL JURISDICTION FOR INTERNET TRANSACTIONS
The US, Canada, and the European Union have generally agreed to apply the law of the country where the defendant’s servers are located.
This so-called country of origin principle allows courts an easy rule of thumb to determine choice of law.

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Exceptions
Some countries have adopted a country of reception approach.
This increases the risk to a business because, in theory, one would need to have a fundamental knowledge of the laws of each individual country.

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Other Theories of Jurisdiction in Electronic Commerce

Australia’s highest court, in 2002, ruled that American–based publisher Dow Jones could be sued in Australia for defamation based on an article that appeared on its Web site, even though Dow Jones has no presence in Australia and its Web site and infrastructure are located in New Jersey.

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learning outcome checklist
3 – 1 Explain the role of the judiciary in the context of the American legal system.
3-2 Distinguish between the role of federal courts and state courts.
3-3 Identify the responsibilities of trial courts versus appellate courts.

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learning outcome checklist
3-4 Articulate how the law develops via adjudication of cases.
3-5 Differentiate between subject matter jurisdiction and personal jurisdiction.
3-6 List the types of controversies over which federal courts have subject matter jurisdiction.

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learning outcome checklist
3-7 Explain the role of long-arm statutes in determining personal jurisdiction.
3-8 Apply the minimum contacts test in both a traditional and cyber setting and describe the importance of the Zippo sliding scale.
3-9 Articulate the special problems posed by different international jurisdiction standards.

Chapter 2
Business
and the Constitution
McGraw-Hill/Irwin
Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved.

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Chapter Overview
The structure of the U.S. Constitution and individual state constitutions, and their respective roles in the American legal system.
The specific powers granted to the government
in the Constitution.

The protections afforded by the Constitution
in the Bill of Rights and the 14th Amendment.

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Functions of the Constitution
(1) establishing a structure for the federal government and rules for amending the Constitution;
(2) granting specific powers for the different branches of government;
(3) providing procedural protections for U.S. citizens from wrongful government actions.

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Structure of the Constitution
Preamble
Seven articles
27 amendments

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Overview of Articles I, II
Article I Establishes the legislative branch (A Congress composed of the House of Representatives and the Senate); sets qualifications for members; grants congressional powers (lawmaking).
Article II Establishes the executive branch (president); sets qualifications for the presidency; grants executive powers (enforcement of laws).

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Overview of Articles III, IV, V
Article III Establishes the judicial branch with a federal system of courts, including a Supreme Court; grants certain judicial powers.
Article IV Establishes the relationship between the states and the federal government; describes how to admit new states to the Union.
Article V Describes the process for amending the Constitution.

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Overview of Articles VI, VII
Article VI Establishes the Constitution and federal law as the supreme law of the United States over any conflicting state law; authorizes the national debt (Congress may borrow money); public officials must take an oath to support the Constitution.
Article VII Lists the requirements for ratification of the Constitution.

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FEDERAL POWERS
The powers that generally impact business owners:

(1) the power to regulate commerce
(2) taxing the citizenry and commercial entities and spending government funds (tax and spend provisions)
(3) bankruptcy, patents, and copyrights
(4) a more general implied authority to make all laws necessary for carrying out its enumerated powers

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Constitutional Checks and Balances
This system of checks and balances is called the separation of powers.

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Judicial Review
One of the central concepts in federal Constitutional law is the notion that federal courts have the right to invalidate state or federal laws that are inconsistent with the U.S. Constitution.
The U.S. Supreme Court is the ultimate judge

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Standards of Review
Court classifies the action into one of three categories of scrutiny:
(1) the rational basis category, or
(2) intermediate-level scrutiny, or
(3) strict scrutiny.

*
Explain that one appeals their case based on “law” rather than jury’s decision on facts.

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Supremacy Clause and Preemption

U.S. Constitution provides that valid federal laws (those made pursuant to Congress’s constitutional authority and that are constitutionally sound) are always supreme to any conflicting state law

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Cipollone v. Liggett Group, Inc., et al., 505 U.S. 504 (1992)

“Article VI of the Constitution provides that the laws of the United States shall be the supreme Law of the Land. Thus, [. . .] it has been settled that state law that conflicts with federal law is ‘without effect.’

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COMMERCE POWERS
Congress’s broadest power is derived from the Commerce Clause whereby Congress is given the power to “regulate Commerce among the several states.”

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Application of Commerce Powers
Congress has the express constitutional authority to regulate:
(1) channels of interstate commerce such as railways and highways,
(2) the instrumentalities of interstate commerce such as vehicles used in shipping,
(3) the articles moving in interstate commerce

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Constitutional Restrictions on State Regulation of Commerce

The U.S. Supreme Court has ruled that the mere existence of congressional commerce powers restricts the states from discriminating against or unduly burdening interstate commerce.

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Cavel International, Inc. v. Madigan, 500 F.3d 551 (7th Cir., 2007)
“The state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it should be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”

*
The next slide gives an example of a valid state law; instructor might consider also giving an example of an invalid state law.

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TAX AND SPEND POWER

Congress has a far-reaching power to tax the citizenry and to spend the federal government’s money in any way that promotes the common defense and general welfare.

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Necessary and Proper Clause
Congress may also place conditions on the use of federal money in order to achieve some public policy objective.
Congress generally cites the Necessary and Proper Clause as authorization to set conditions on the spending.

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CONSTITUTIONAL PROTECTIONS
The Constitution provides protection for the citizenry from unlawful or repressive acts by the government.
The Bill of Rights (the first ten amendments) and other amendments that guarantee the right of due process.

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First Amendment
“Congress shall make no law”:
That allows government encroachment in the areas of religion, press, speech, assembly, and petition of grievances.

*
Explain free speech – the concept that it relates to government interference and may not exist in private setting.

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Speech by Corporations
Commercial Speech
Political Speech
Which can be regulated?

*
Talk about recent Supreme Court decisions related to this topic, and how it is now more protected than previously.

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Pagan v. Fruchey and Village of Glendale, 492 F.3d 766 (6th Cir., 2007)

“Glendale’s attempt to justify its ordinance amounts to nothing more than a conclusory articulation of governmental interests.”

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Political Spending and Corporations
Traditional distinctions between free speech vs. spending limits on political advertising.
General rule prior to 2010 was that spending limits were legal.
See recent case on following slide.

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Citizens United v. Federal Election Commission

In a 2010 case that attracted significant media attention, the U.S. Supreme Court ruled that the government may not ban all political spending by corporations in candidate elections.

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Fourth Amendment

The U.S. Supreme Court has systematically applied a reasonableness test to define the limits of when the government may search without a warrant based on probable cause that criminal activity is possible.

*
Use example such as OSHA or EPA.

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Fifth Amendment
This amendment does not apply to corporate entities when the government is seeking certain business records, individual corporate officers and employees are entitled to Fifth Amendment protection when facing a criminal investigation.

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DUE PROCESS PROTECTIONS

Fifth and Fourteenth Amendments
These clauses protect individuals from being deprived of “life, liberty, or property” without due process of law

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Fourteenth Amendment

Perhaps the most important role of the Fourteenth Amendment is that it makes the Bill of Rights applicable to the states.

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Equal Protection under the 14th Amendment

Fundamentally, the clause guarantees that the government will treat people who are similarly situated equally.

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State Farm Mutual v. Campbell
538 U.S. 408 (2003)
“States possess discretion over the imposition of punitive damages, but it is well established that there are constitutional limitations-the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments.”

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PRIVACY
Although not explicitly mentioned in the Constitution, privacy rights play a central role in our legal system.
Common law origins
Statutory law examples

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Federal Statutes
Health Insurance Portability and Accountability Act (HIPPA)
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (called the USA Patriot Act)

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Workplace Privacy
Most privacy rights afforded by the U.S. Constitution do not extend to the workplace.
Nonetheless, privacy rights have become increasingly important to business owners and managers as Congress and state legislatures seek to clarify workplace privacy rights by statute.

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learning outcome checklist
2 – 1 Explain the federal system in the context of the U.S. Constitution.
2 – 2 Describe the purpose and structure of the Constitution.
2 – 3 List the major provisions of the first three articles of the Constitution and explain the underlying assumptions of coequal branches of government.
2 – 4 Identify the powers of Congress that impact individuals and businesses.

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learning outcome checklist
2 – 5 Recognize the role of judicial review in interpreting the Constitution.
2 – 6 Understand the various applications and limits of congressional power under the Commerce Clause.
2 – 7 Apply Constitutional restrictions on state regulation of commerce in the business environment.
2 – 8 Explain how the tax and spend powers impact business.

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learning outcome checklist
2 – 9 List the major protections in the Constitution’s Bill of Rights and explain how they apply in the business environment.
2-10 Understand limits imposed on government overreaching by virtue of the Due Process Clause and Equal Protection Clause.
2 – 11 Explain the right of privacy that has been recognized by the U.S. Supreme Court and Congress.

Chapter 1
Legal Foundations
McGraw-Hill/Irwin
Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved.

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Chapter Overview
How legal issues impact business planning and strategy.
The foundations, definitions, and scope of various primary and secondary sources of law.
Classifications of law.

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“THEORY to PRACTICE”
The Melvin Text 2-Step System
Step 1: developing insight by understanding legal fundamentals
Step 2: learning to apply legal theories in practice

*
Instructor should consider giving several specific examples of the application of legal theories in practice. My suggestion would be to choose your own cases, perhaps from your previous law practice experience, or the local newspaper to demonstrate the practical application of theory. The Melvin text uses this theme throughout the book, so it is worthwhile to spend extra time on this.

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Law – What is It?
Law is a body of rules of action or conduct prescribed by controlling authority, and having legal binding force.

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Purposes of Law
System of order that defines crimes and levies punishment for violations
System for resolving disputes by providing a basis for deciding the legal interests and rights of the parties

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Jurisprudence
The philosophy behind the law:

Legal realism (most widely used in U.S.)
Natural law
Positive law

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“Legal Environment” of Business
Law serves as an important catalyst for commerce by promoting good faith dealing among merchants and consumers.
Law also provides some degree of reliability that can be considered in business planning and commercial transactions.

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Role of Counsel
Managers often work closely with a business attorney.
This often results in reduced costs, and limitation of risk and liability.

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Primary Sources of Law
Constitutional law
Statutory law
Common law
Administrative law

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Constitutional Law
Establishes important legal principles
Not designed to specifically resolve every legal issue or case
May require “interpretation” by courts
Exists at state and federal levels

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Statutory Law
Created by a legislative body
Approved or disapproved by the
executive branch
(i.e., governor or president)

Also known as “codes”

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Common Law
Made by appellate courts
Based on the fundamentals of
previous cases that had similar facts

Also known as “case” law

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Administrative Law
Source of law that regulates the exercise of authority by government agencies
Also known as “regulations”

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Secondary Sources of Law
Secondary sources have no independent authority, nor are they legally binding.
Include the Restatements of the Law and sets of model statutes
Example: Uniform Commercial Code

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Restatements of the Law
Collections of uniform legal principles in a specific area of law that are designed to reduce the complexity of judicial decisions.
Common examples of widely used restatements include torts and contracts.

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Uniform Model Statutes
Drafted by legal experts, in hopes that they will be used or adopted by state legislatures to provide uniformity in laws between the states.
Examples: UCC, RUPA, MBCA

*
Give examples, e.g.: UCC – Art 2 Sales

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Categories of Law
Broad categories based on classifications related to a particular legal function or a right afforded by law
Helpful in understanding “big picture” of our legal system

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Criminal Law versus Civil Law
Civil laws are designed to compensate parties for losses as a result of another’s conduct.
Criminal laws are a protection of society, and the violation of criminal laws results in penalties to the violator such as fines or imprisonment.

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Substantive Law vs Procedural Law
Substantive laws provide individuals with rights and create certain duties.
Procedural laws provide a structure and set out rules for pursuing substantive rights.

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Public Law vs Private Law
Public laws are those derived from some government entity.
Private laws are recognized as binding between two parties even though no specific statute or regulation provides for the rights of the parties.

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Law vs Equity
We use the terms law and equity when describing the appropriate measure of judicial action intended to compensate an injured party in a civil lawsuit.
These measures are known as legal or equitable remedies.

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Types of Remedies
Remedies at law generally take the form of money damages.
Equitable remedies or relief generally includes an injunction or restraining order (a judicial order requiring a party to cease a certain activity, or perhaps to take a specific action).

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Important Equitable Maximums
These maxims have been developed by early American courts.
Broad statements of rules that are based on notions of fairness and justice in applying the law.

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Equity Aids the Vigilant
The law favors those who exercise vigilance in pursuing their claims and disfavors those who rest on their legal rights by failing to act to protect their rights in a reasonable period of time.

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Substance over Form
When applying the law, courts look to the intent of parties involved and adhere to a standard of good faith and fair play instead of applying the letter of the law in a way that would violate fundamental principles of fairness and consistency.

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Clean Hands Doctrine
Courts are guided in their decisions not only by the letter of the law, but also on the basis that one seeking the aid of a court must come to the court with clean hands that are unstained by bad faith, misrepresentations, or deceit.

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Kauffman-Harmon v. Kauffman
36 P. 3d 408 (Sup. Ct., Mont. 2001)
“The doctrine of clean hands provides that parties must not expect relief in equity, unless they come into court with clean hands.”

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Case Precedent
Once an appellate court has decided a particular case, the decision becomes a case precedent.
Precedent is usually only binding within the jurisdiction of the court setting the precedent.

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Stare Decisis
The doctrine of stare decisis, one of the most important concepts in American law, is the principle that similar cases with similar facts and issues should have the same judicial outcome.

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Consider spending additional time on this concept. One could generate class discussion based on Supreme Court nominee confirmation hearings, i.e. Bork, or others.

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Advantages of Stare Decisis
Allows individuals and business to have some degree of confidence that the law will remain reasonably consistent.
Requires all lower courts, such as a trial court, to follow the case precedent so that any similar case would be decided according to the precedent.

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Flagiello v. Pennsylvania Hospital 208 A2d 193 (PA 1965)
“Stare decisis channels the law. It erects lighthouses and [flies] the signals of safety…but the principle of stare decisis does not demand that we follow precedents which shipwreck justice.”

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learning outcome checklist
1 – 1 Understand the broad definition and origins of law.
1-2 List and explain the purposes of law.
1-3 Explain the importance and benefits of legal awareness for business owners and managers in creating strategy and adding value to a company.

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learning outcome checklist
1-4 Articulate the role of counsel in legal decision making in a business context.
1-5 Recognize, explain, and give examples of sources of American law.
1-6 Differentiate between the concepts of law and equity.

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learning outcome checklist
1-7 Understand the legal doctrine of stare decisis.
1-8 Identify and apply important equitable maxims.
1-9 Classify the law into several broad categories.