Washington State University Business Law Discussion

Chapter 1. Introduction to Law.

Chapter 2. Business Ethics and Social Responsibility.

Chapter 3. The Judicial System.

Chapter 4. Managing Disputes: Alternative Dispute Resolution and Litigation Strategies.

Initial Postings: Read and reflect on the assigned readings for the week. Then post what you thought was the most important concept(s), method(s), term(s), and/or any other thing that you felt was worthy of your understanding in each assigned textbook chapter.Your initial post should be based upon the assigned reading for the week, so the textbook should be a source listed in your reference section and cited within the body of the text. Other sources are not required but feel free to use them if they aid in your discussion.

Also, provide a graduate-level response to each of the following questions:

Franklin Felon shot and killed two people during a robbery. Why was this act a violation of both criminal and civil law?

Cash Right Now, LLC provides very high interest loans to people with poor credit scores that have a high probability of defaulting on the loan. Many people do in fact default on these loans; however, Cash Right Now, LLC does make a substantial profit overall, even considering these defaults. The people that borrow from Cash Right Now, LLC are unlikely to obtain credit elsewhere. Discuss if Cash Right Now, LLC’s business practices are ethical considering it charges much higher interest rates than traditional banks.

Explain the concept of “stare decisis” and why it is important to the American legal judicial system.

Explain the pros and cons of utilizing litigation to resolve a dispute as opposed toalternatives to dispute resolution.

Marianne M. Jennings
BUSINESS
Its Legal, Ethical, and
Global Environment
11th Ed.
Chapter 2
Business Ethics and
Social Responsibility
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What Is Ethics?
• Examples:
– Underinflated football issue in the NFL
– Turing increases drug price by 5000%
– Uber’s billing policies
• Definition: normative standards,
generally accepted rules of conduct that
govern society
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2-1
What Is Ethics?
• What is “fair”?
• What if something “just doesn’t seem
right” or “That’s just not fair”?
– Discuss seeing two movies for the price of one
– Disclosing your salary cut after the loan
application is submitted
– Telling the clerk you received too much change
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2-2
Normative Standards
• Normative Standards
– How we behave, on average
– How we treat each other
– Expectations on contracts beyond legal
interpretation
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2-3
Normative Standards
• Applying Standards of Ethical
Reasoning to Business Dilemmas
– Ethical standard is established
– Individual ethical standards differ
– Debate over sources of ethical standards
– Evaluate ethical standards and conflicts
as new data appear
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2-4
Normative Standards
• There is no statute on cutting in line, but we
do honor that normative standard
• We refer to adultery as “cheating” because
the normative standard is that such
relationships breach the social norm
• We refer to “cheating” on exams as well
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2-5
Three Layers of Business Ethics
• Basic values (honesty)
• Notions of fairness (how we treat
others)
• Issues related to community and the
environment
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2-6
Ethical Standards: Positive Law
• Codified law is followed
• However, there can still be issues with
fairness, disclosure, etc. even though
there is compliance with the law, as
with the verdicts in the 2008 financial
markets cases
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2-7
Ethical Standards: Natural Law and
Ethics
• Positive law is not the standard
because some principles are inviolate
• Slavery was wrong even though laws
allowed it in the United States
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2-8
Ethical Standards: Moral Relativism
• Ethics standard is based on the
situation you are dealing with
• Depending on pressures, you make a
decision without regard to positive
law or normative law standards
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2-9
Ethical Standards: Religion and Ethics
• Tenets of faith are ethical standards
• Even if the law allows you to disclaim
liability for selling goods “as is,” the
standards of religion might require
them to do more
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2-10
Ethical Dilemmas
• Categories of Ethical Dilemmas
– Taking things that don’t belong to you
– Saying things you know are not true
– Giving or allowing false impressions
– Buying influence or engaging in conflict
of interest
– Hiding or divulging information
– Taking unfair advantage
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2-11
Ethical Dilemmas
• Categories of Ethical Dilemmas
– Committing acts of personal decadence
– Perpetrating interpersonal abuse
– Permitting organizational abuse
– Violating rules
– Condoning unethical actions
– Balancing Ethical Dilemmas
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2-12
Analyzing Ethical Dilemmas
• Make sure you have a grasp of all the available facts.
• List any information you would like to have but don’t and what
assumptions you would have to make, if any, in resolving the
dilemma.
• Take each person involved in the dilemma and list the concerns
they face or might have on what to do about a product and its
safety issue.
• Develop a list of resolutions for the problem. Apply the various
models for reaching this resolution.
• Evaluate the resolutions for costs, legalities, and impact. Try to
determine how each of the parties will react to and be affected by
each of the resolutions you have proposed.
• Make a recommendation for the actions that should be taken.
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2-13
Resolution of Dilemmas
• Blanchard and Peale
– Is it legal?
– Is it balanced?
– How does it make me feel?
• The Front-Page-of-the-Newspaper Test
– How would the story be reported?
– Use an objective and informed reporter’s
view
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2-14
Resolution of Dilemmas
• Laura Nash and Perspective
– How would I view the problem if I sat
on the other side of the fence?
– Am I able to discuss my decision with
my family, friends, and those closest to
me?
– What am I trying to accomplish?
– Will I feel as comfortable over the long
term as I do today?
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2-15
Resolution of Dilemmas
• The Wall Street Journal Model
– Compliance: Are you violating any laws?
– Contribution: What does this action
contribute to my customers, shareholders,
bondholders, employees, community, and
suppliers?
– Consequences: How will this action affect
me, my company, my family, our
employees, and our shareholders?
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2-16
Resolution of Dilemmas
• Immanuel Kant’s Categorical
Imperative
• The Golden Rule
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2-17
Why We Fail to Reach Good Ethical
Decisions
• Rationalizations
– “Everybody else does it”
– “If we don’t do it, someone else will”
– “That’s the way it has always been done”
– “We’ll wait until the lawyers tell us it’s
wrong”
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2-18
Why We Fail to Reach Good Ethical
Decisions
• Rationalizations
– “It doesn’t really hurt anyone”
– “The system is unfair”
– “I was just following orders”
– “You think this is bad, you should have
seen…”
– “It’s a gray area”
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publicly accessible website, in whole or in part, except for use as permitted in a license
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2-19
Social Responsibility
Whom Should Shareholders Serve?
Inherence
Enlightened Self-Interest
Invisible Hand
Social responsibility
Moral question:
Whose interest should
corporation serve?
Policy question:
Best way to serve
interest is if the
corporation is
responsive to:
Shareholders only
Shareholders only
Larger society
Larger society
Shareholders only
Larger society
Shareholders only
Larger society
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2-20
Social Responsibility
• Inherence
– Serve shareholders
– Friedman view
• Enlightened Self-Interest
– Manager is responsible first to shareholders but
serves them best by being responsible to larger
society
– Business value is enhanced if it is responsive to
society needs
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2-21
Social Responsibility
• Invisible Hand
–Best for society to guide itself
• The Social Responsibility School
–Manager should serve larger society
–Become involved in all types of political
and social issues
–Encourage managers to be involved
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publicly accessible website, in whole or in part, except for use as permitted in a license
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2-22
Importance of Ethics
• Ethics Resource Center Study
– Firms with written codes of ethics did
substantially better as an investment than the
general Dow Jones Composite over a 30-year
period
– Executives feel ethical behavior strengthens a
firm’s competitive edge
– Johnson & Johnson recall of Tylenol earned it
high respect and higher earnings in spite of cost as
well as a type of immunity to scrutiny for decades
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publicly accessible website, in whole or in part, except for use as permitted in a license
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2-23
Why Business Ethics?
• Costs of Unethical Behavior
– BP and the refinery explosion and
pipeline rupture and Deepwater Horizon
– Nestlé and the infant formula
– Beech-Nut and the fake apple juice
– GM, the Malibu design, and the
litigation
– GM and the engine switch case
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
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2-24
Why Business Ethics?
• “The Tony Bennett Factor”
– The Keys to Long-Term Survival
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2-25
Why Business Ethics?
• Ethics as a Strategy
• Impact on Reputation of Ethical
Missteps
• Reputation’s Impact on Market Price
and Capitalization: Johns-Manville
and asbestos
• Reputational Capital and Its
Importance
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2-26
Leadership and Ethics
Leadership and Ethics: Making Choices Before Liability
OPTIONS
COST
W
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2-27
Ethics as a Strategy
• The Subprime Mortgage Market
– Lucrative area
– Questions about fairness and disclosure
– With collapse of the mortgages, new
regulations, economic setbacks, financial
downturns in companies that pushed the
envelope on subprime loans
– Companies that pulled back from subprimes
are now doing well
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2-28
Creating an Ethical Culture
• The Tone at the Top
• Sarbanes-Oxley Has Changed
Corporate Governance, Reporting, and
Operations
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publicly accessible website, in whole or in part, except for use as permitted in a license
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2-29
Creating an Ethical Culture
• Sarbanes-Oxley and Culture
–
–
–
–
–
–
–
–
–
Code of ethics
Training for employees
Means for anonymous reporting
Following up on employee reports
Reporting up the ladder
Action by the board in monitoring and following up
Self-reporting by company
Enforcement within company
High-ranking officer in charge
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2-30
Creating an Ethical Culture
The Ethical Culture
Leadership
By
Example
Company Policies and
Compensation Systems
Reward Ethical and
Moral Behavior
Ethics Codes
Ethics Training: Annual/Scenarios
Investigations/Enforcement/Feedback
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2-31
Creating an Ethical Culture
• Developing an Ethics Stance
– Setting parameters for personal and
business behavior
– Setting tone of tolerance or intolerance
for behavior
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2-32
Creating an Ethical Culture
Your Ethics Stance:
The Embezzling Employee
Relativism
▪
Did she understand
embezzlement is
wrong?
▪
Why did she
take the money?
▪
How long was
she embezzling?
▪
Termination
Absolutism
Pragmatic
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Idealistic
2-33
Creating an Ethical Culture
• Watch for Dangers of Unethical
Environment
– Intense competition and issues of
survival (pressure)
– Managers making poor judgments
– Avoiding the “either/or conundrum”
– Disparity in time devoted to ethics
discussion vs. performance discussion
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2-34
Creating an Ethical Culture
• Being Careful About Pressure and Signals
– Competition is so intense that business
survival is threatened
– Managers make poor judgments
– Employees have few or no personal values
– Employees respond only to earnings demands
– Managers and executives are touting earnings
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2-35
International Business
• Businesses Must Decide Whether to
Operate Under One Uniform Set of
Standards
• Cultures, Laws, and Standards Vary
– Creates issues of bribes, grease payments,
and culture-related gifts
– Problems of economic development
where bribery is common
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2-36
Creating an Ethical Culture
A Possible Uniform Standard for Ethical Choices
– Categorical Imperative: How would you want to be
treated?
– Are you comfortable with a world with your standards?
– Christian principle: The Golden Rule
– And as ye would that men should do to you, do ye also
to them likewise. Luke 6:31
– Thou shalt love…they neighbor as thyself. Luke 10:27
– Confucius: What you do not want done to yourself, do
not do to others.
– Aristotle: We should behave to our friends as we wish
our friends to behave to us.
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2-37
Creating an Ethical Culture
A Possible Uniform Standard for Ethical Choices
– Judaism: What you hate, do not do to anyone.
– Buddhism: Hurt not others with that which pains
thyself.
– Islam: No one of you is a believer until he loves for his
brother what he loves for himself.
– Hinduism: Do nothing to thy neighbor which though
wouldst not have him do to thee.
– Sikhism: Treat others as you would be treated yourself.
– Plato: May I do to others as I would that they should
no unto me.
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2-38
Corruption Perceptions Index 2015
LEASE CORRUPT
• Denmark
• Finland
• Sweden
• New Zealand
• Norway
• Switzerland
• Singapore
• Canada
• Germany
• Luxembourg
• United Kingdom
• Australia
• Iceland
• Belgium
• Austria
• United States
• Hong Kong
• Ireland
• Japan
• Uruguay
• Qatar
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MOST CORRUPT
• Somalia
• Korea (North)
• Afghanistan
• Sudan
• South Sudan
• Angola
• Libya
• Iraq
• Guinea Bissau
• Venezuela
• Haiti
• Yemen
• Turkmenistan
• Syria
• Eritrea
• Uzbekistan
• Zimbabwe
• Cambodia
• Burundi
• Myanmar
2-39
International Business
Interdependence of Trust, Business, and Government
Fairness assumption
Investors
Regulation/Fairness
Business
Customers
Government
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2-40
Marianne M. Jennings
BUSINESS
Its Legal, Ethical, and
Global Environment
11th Ed.
Chapter 3
The Judicial System
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
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Types of Courts
• Trial Courts
– Place where case begins
– Jury hears cases and decides disputed issues of fact
– Single judge presides over case
• Appellate Courts
– Review actions of trial court
– Usually have published opinions for uniformity and
consistency
– No trials held – panel of judges hears case
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3-1
How Courts Make Decisions
• Process of Judicial Review (Appellate)
– Determine whether error was made
– Transcript is reviewed
– All other evidence is reviewed
– Parties submit written briefs to
summarize the evidence and issues
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3-2
How Courts Make Decisions
• Process of Judicial Review (Appellate)
– Oral arguments may be made before
panel of judges
• Generally three judges, but at U.S. Supreme
Court level it is nine
• En banc : full bench hears case
– Judges vote on whether there is
reversible error
• Error that might have affected the outcome
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3-3
How Courts Make Decisions
• Process of Judicial Review (Appellate)
– Possible actions of reviewing court
• Affirm—no reversible error and decision stands
• Reverse—reversible error and decision is reversed
• Remand—error that requires further proceedings
• Modify—change ruling of lower court
– Statutory interpretation
• Courts at appellate level can review statutory
application
• Can determine scope of statute
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3-4
Consider 3.2
• The Porch/Stoop and the Law Student
– Is visible drinking on private property covered
by a statute that prohibits public drinking?
– Consider the implications – how far would the
statute go – if you could see through an open
window or open door that someone was
drinking?
– Intent of statute
– Exceptions for neighborhood parties
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3-5
How Courts Make Decisions
• Process of Judicial Review
– Judicial review and case precedent—the
doctrine of stare decisis
• Courts will follow previous decisions for
consistency
• Previous decisions are called precedent
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3-6
How Courts Make Decisions
• Process of Judicial Review
– Interpreting precedent
• The rule of law in the case is the precedent
• Dicta is not the precedent
• Dicta is the discussion of the relevant law
– Exceptions to stare decisis—when precedent
may not be followed
•
•
•
•
Cases are factually distinguishable
Precedent is from another jurisdiction
Technology changes
Sociological, moral, or economic changes
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3-7
Parties in the Judicial System
• Plaintiffs
– Initiate the lawsuit
– Called petitioners in some cases
• Defendants
– Alleged to have violated some right of
the plaintiff
– Party named in the suit for recovery
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3-8
Parties in the Judicial System
• Lawyers
– Those who act as advocates for plaintiffs and
defendants
– Have fiduciary relationship with clients
– Represent client and see that procedures are
followed
– Privilege exists with client
• Must keep what client tells them confidential
• Exception is advance notice of crime to be committed
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3-9
Parties in the Judicial System
(This information is beyond what is in the text)
Plaintiffs – originate suite
Defendants – party from whom plaintiff seeks recovery
Represented
By Lawyers
INTERNATIONAL LAWYERS
Italy
Avocati
Procuratori
Quebec/France
Advocate – High Courts
Notaire – Real Property Transactions
Juridique – Legal Counselor
Japan
Bengoshi
Great Britain/
Canada
Solicitors – Advice, Documents
Barristers – Higher Courts
Germany
Rechtsanwalt – Litigator
Rechtsbeistand – Advice
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3-10
Parties in the Judicial System
• Judges
– Can control proceedings or outcomes
– Can be elected or appointed
• Trial or Appellate
– Trial Judge presides over trial
– Appellate Judge hears appeal from trial
court
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3-11
Parties in the Judicial System
• Name Changes for Parties on Appeal
– Appellant or Petitioner: Party appealing
the lower court’s decision
– Appellee or Respondent: Party who won
below and is not appealing
– Some states reverse the name of the case
on appeal; example: Smith v. Jones −
trial court, Jones loses and appeals;
Jones v. Smith − appellate court
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3-12
Jurisdiction
• Jurisdiction is the Authority of a Court
to Hear a Case
• Types of Jurisdiction
– Subject matter jurisdiction is jurisdiction
over the subject matter of the case
– In personam jurisdiction is jurisdiction
over the parties in a case
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3-13
Federal Court System
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3-14
Federal Court System
• Federal District Court
– General trial court of the federal system
– Subject matter jurisdiction
• When U.S. is a party
• Federal question
• Diversity of citizenship
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3-15
Federal Court System
• Limited Jurisdiction
– One issue that arises is what law will be
applied to the case
• Federal courts apply state law, they do not
make up a new system of federal common
law
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
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3-16
Federal Court System
• Specialized Courts − Courts of Limited
Original Jurisdiction
– Tax court
– Bankruptcy court
– Claims Court
– Judge Advocate General (military courts)
– Courts for other agencies
– Court of International Trade
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3-17
Structure
• There are ninety-four federal districts
‒ Each state is at least one federal district and
Puerto Rico and DC are also federal districts
(94 federal district courts)
‒ Virgin Islands, Guam, and Northern Mariana
islands also have a federal court
‒ Number of districts per state is determined by
population and case load
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distributed with a certain product or service or otherwise on a password-protected website
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3-18
Federal Court System
• Federal District Court Opinions
– Opinions are reported in the Federal
Supplement
• Cite: F.Supp. (F.Supp.2d.)
• Example: Sansotta v. Town of Nags
Head, 97 F. Supp. 3d 713 (E.D.N.C.
2014)
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
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3-19
Federal Court System
• Court of Appeals
– Formerly known as U.S. Circuit Court of Appeals
– Thirteen federal circuits
– Generally a panel of three judges reviews appeals
from Federal District Court
– Opinions found in Federal Reporter
– Cite: F., F.2d or F.3d.
• Little Sisters of the Poor Home for the Aged, Denver
v. Burwell, 794 F.3d 1151 (10th Cir. 2010)
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distributed with a certain product or service or otherwise on a password-protected website
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3-20
Federal Court System
• Supreme Court
– Must decide to review cases
• Issues writs of certiorari on those cases they
will review-determined by the rule of four
– Has original jurisdiction for
• Disputes between and/or among states
• Charges of espionage or ambassadors and
foreign consuls
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
3-21
Federal Court System
• Supreme Court
– Nine judges with lifetime appointments
– Opinions reported in:
• United States Reports—official reports
• Citizens United v Federal Election
Com’n, 558 U.S. 310 (2010), 130
S.Ct. 876 (2010), 175 L.Ed.2d 753
(2010)
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a
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distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
3-22
State Court Systems
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
3-23
State Court Systems
• General Trial Court
– Usually called superior, circuit,
district, or county court
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
3-24
State Court Systems
• Lesser Courts
– Small claims: Lesser damage claims, no
Lawyer
– Justice of the Peace courts
• Smaller damage claims
• Lawyers permitted to appear
– Traffic courts: For citations
– Probate courts: For wills, guardianships,
conservatorships, etc.
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
3-25
State Appellate Courts
Courts of Appeal or State Appellate Courts and
State Supreme Courts
• Opinions reported in regional reporters
₋ Example: Pacific Reporter, P. , P.2d., P.3d
₋ Example: Hoag v. French, 357 P. 3d 153 (Ariz. App.
2015)
• Opinions also reported in state reporters
₋ Example: DirectTV v. Imburgia, 170 Cal. Rptr. 3d (Cal.
2014)
₋ Wyman v. Ayer Properties, 11 N.E.2d 1074 (Mass. 2014)
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3-26
Regional Reporter State
Groupings
Pacific (P. or P.2d)
Alaska
Arizona
(California)
Colorado
Hawaii
Idaho
Kansas
Montana
Nevada
New Mexico
Oklahoma
Oregon
Utah
Washington
Wyoming
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
Northwestern (N.W. or N.W.2d)
Iowa
Michigan
Minnesota
Nebraska
North Dakota
South Dakota
Wisconsin
Southwestern (S.W. or S.W.2d)
Arkansas
Kentucky
Missouri
Tennessee
Texas
3-27
Regional Reporter State
Groupings
Northeastern (N.E. or N.E. 2d)
Illinois
Indiana
Massachusetts
(New York)
Ohio
Southeastern (S.E. or S.E.2d)
Georgia
North Carolina
South Carolina
Virginia
West Virginia
Atlantic (A. or 2d)
Connecticut
Delaware
District of Columbia
Maine
Maryland
New Hampshire
New Jersey
Pennsylvania
Rhode Island
Vermont
Southern (So. or So.2d)
Alabama
Florida
Louisiana
Mississippi
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
Note: California and New York each has
its own reporter system. Source: The
national reporter system was developed by
West Publishing Company. Reprinted
with permission of West Publishing
Company.
3-28
Sample Page of a National
Reporter Case
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
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3-29
State Court Systems
• Venue
– Location of court in the system within a
jurisdiction
– Venue in criminal cases can change from
location of crime to another court if press
coverage is excessive
– Civil venue is often where defendant resides
or where the cause of action occurred
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distributed with a certain product or service or otherwise on a password-protected website
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3-30
Personal Jurisdiction
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3-31
In Personam Jurisdiction
• Means for Acquiring Jurisdiction
– Property ownership in the state = in rem
jurisdiction
– Volunteer − parties agree to it
– Presence in the state
• Residence
• Corporations incorporated or doing business in the
state
• Minimum contacts – constitutional standards of
contact with a state (“Long-Arm” Statutes)
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3-32
Minimum Contacts and LongArm Statutes
• Case 3.1 Hard Candy, LLC v. Hard
Candy Fitness (2015)
– How much of a presence did Hard Candy
Fitness have in Florida? What about Florida
deals?
– What happens if the defendant is not required
to come to Florida to defend the suit?
– What are the implications if the company is not
required to come and defend the lawsuit?
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3-33
The International Courts
• International Court of Justice (ICJ)
– Part of U.N.
– Jurisdiction is contentious (parties must agree to
submit)
• EU Courts
– Court of Justice of European Communities
– European Court of Human Rights
• Inter-American Court of Human Rights
• Opinion Found in International Law Reports
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distributed with a certain product or service or otherwise on a password-protected website
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3-34
The International Courts
• London’s Commercial Court
– Site of many international arbitrations
• Jurisdiction Issues in International
Courts
– Similar to in personam jurisdiction
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publicly accessible website, in whole or in part, except for use as permitted in a license
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3-35
The International Courts
• Conflicts of Law
– Court systems vary
– Tort recovery more liberal in U.S.
• No contingency fees allowed
elsewhere
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3-36
Marianne M. Jennings
BUSINESS
Its Legal, Ethical, and
Global Environment
11th Ed.
Chapter 1
Introduction to Law
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publicly accessible website, in whole or in part, except for use as permitted in a license
distributed with a certain product or service or otherwise on a password-protected website
or school-approved learning management system for classroom use.
Definition of Law
• Aristotle
– Law is reason unaffected by desire
• Holmes
– Law embodies the story of a nation’s
development through many centuries
• Blackstone
– That rule of action which is prescribed by
some superior and which the inferior is bound
to obey
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1-1
Definition of Law
• Black’s Law Dictionary
– A body of rules of action or conduct
prescribed by the controlling authority,
and having legal binding force
• Rules Enacted By a Government
Authority That Govern Individuals
and Relationships in Society
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1-2
Classifications of Law
• Public Law
– Enacted by some authorized government
body. Example: federal securities laws
• Private Law
– Enacted by private individuals
• Example: the terms of a lease agreement
• Example: employment agreement
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1-3
Classifications of Law
• Criminal versus Civil Laws
– Criminal laws are wrongs against society
– Civil laws are wrongs against individuals
• Substantive versus Procedural Laws
– Substantive: Gives rights and
responsibilities
– Procedural: Means or procedures for
enforcing substantive rights
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1-4
Classifications of Law
• Common Law
– Began in England in 1066 and continues today
– Non-statutory law
– Exists in court decisions
– Following case precedent, or stare decisis, “let
the decision stand”
• Statutory Law
– Passed by governmental body
– Also known as Codified Law
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1-5
Classifications of Law
• Law versus Equity
– In common law England, remedies were
separated into legal and equitable remedies
• Legal = money
• Equitable = injunctions, specific performance
– Remedies were separated so that courts of
chancery could give remedies when courts of
law could not
– Today all courts are authorized to award legal
or equitable remedies
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1-6
Purposes of Law
•
•
•
•
•
Keeping Order
Influencing Conduct
Honoring Expectations
Promoting Equality
Law as the Great Compromiser
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1-7
Characteristics of Law
• Flexibility
– Examples: the Internet has required the
courts to revisit when a contract
acceptance occurs
• Consistency
– Example: allows businesses to rely on
law for planning
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1-8
Characteristics of Law
• Pervasiveness
– Example: laws covering formation,
operation and dissolution of corporations
do not unduly interfere with
management flexibility
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1-9
Case
• Case 1.1 Yates v. U.S. (2015)
– Statutory interpretation: Does a statute
that prohibits destruction of documents
and tangible objects cover fish?
• Consider 1.2 U.S. v. Katakis (2015)
– Statutory interpretation: Is it obstruction
if you have a program on your computer
that clears out your e-mail?
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1-10
Theory of Law: Jurisprudence
• Incorporation of Theories or Values Into
Definition of Law
• Natural Law: Inviolate principles,
regardless of laws – human rights
• Holmes: “The life of the law … has been
experience”
• The Social Contract: Law reflects the
desires of society for interaction
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1-11
Sources of Law
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1-12
Sources of Law
• Constitutional Law
– Exists at federal and state level
• Establishes government structure
• Establishes individual rights
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1-13
Sources of Law
• Statutory Law at the Federal Level
– Enactments of Congress
• United States Code. Citation = (e.g., 15
U.S.C. § 77)
– Executive orders
• Presidential orders
– Administrative agency regulations
• Code of Federal Regulations. Cite or
citation = C.F.R. (e.g., 12 C.F.R. § 226)
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1-14
Sources of Law
• State Laws
– Enactments of state legislatures
• State Codes
• Cite = Nevada Revised Statutes – N.R.S.
– State administrative agency regulations
• Local Laws
– Ordinances
• County or city statutes
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1-15
Sources of Law
• Private Laws
– Contracts
– Leases
– Employer regulations
• Court Decisions
– Language in statute unclear
– Court provides interpretation or
clarification of law
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1-16
International Law
• Sources
– Custom (Country-by-Country)
– Treaties
• Bilateral − between two nations
• Multilateral − among three or more nations
• Geneva Convention − prisoners of war
• Vienna Convention − diplomatic relations
• Warsaw Convention − air travel
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1-17
International Law
• Private Law or Party Autonomy
• International Organizations (U.N.)
• Act of State Doctrine
– Expropriation
– Confiscation or nationalization: taking of
private property by a government
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1-18
International Law
• Trade Laws and Policies
– Tariffs
– Treaties, e.g., GATT, NAFTA
• Uniform International Laws
– Contracts for the International Sale of
Goods (CISG)
– Similar to Article 2 of the Uniform
Commercial Code (UCC)
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1-19
International Law
• The European Union (EU)
– Group of countries in continental Europe
– Aiming for barrier-free trade; uniform
laws; ease in transaction negotiations
and execution
– Uniformity in currency, job safety,
immigration, customs, licensing, and
taxation
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1-20