its a business law assignment

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UNIVERSITY OF TOLEDO LEGAL AND ETHICAL ENVIRONMENT OF BUSINESS Cohen

CHAPTER 1: FOUNDATIONS IN LAWCHAPTER 1: FOUNDATIONS IN LAWFoundations in Law Legal Theories

Jurisprudence

Positive Law

Natural Law

Social Contract Theory

Purpose and Characteristics of the Legal System

Purpose

Characteristics

Classifying Law

Critical Thinking Challenge

Sources of Law

The Constitution (Federal and State)

Federal Statutes

This chapter examines legal theories and how these legal theories have created a foundation for the legal system in the United States. Some of these theories were born in other countries through the thinking of relevant legal scholars and legal practitioners as well as philosophers.   Although some of these theories came from other countries, the focus of this text is mainly on the U.S. legal system, its place in our society, and how to understand its inner workings. In one chapter, the discussion speci�cally focuses on international law and its implication to business. As the world becomes more connected through pervasive use of technology, the need to understand international jurisprudence and other legal systems outside the United States is essential.   Further, in the year 2014, China became the largest economy in the world. In the coming years, western legal philosophy will come in direct con�ict with eastern legal philosophy and preparation for those certain con�icts is a key factor in understanding how business can operate successfully outside the United States.  

LEGAL THEORIES Throughout written history, humanity has contemplated the law. Today’s U.S. legal system is an amalgamation of historical thinking on the interrelation between government, society as a whole, and individual liberties. Some of these legal theories will be brie�y discussed to show concepts that helped form and develop the U.S. legal system over time.  

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Jurisprudence The current U.S. legal system often derives terms from Latin words, and  “jurisprudence” is one such word. The Latin phrasing is “juris prudentia”, and a pertinent translation is “the study, knowledge or science of law.” As many people have studied the law, gained knowledge of the law and researched the law, con�ict exists as to how the legal system should function in our society. Thus, jurisprudence would be a re�ection upon our current legal system and how legal theories have come to shape that system. The following legal theories (nonexhaustive) present several di�erent views on the meaning and purposes of law.      

Positive Law In general, this theory supports the concept that laws issued by a validly created governmental authority should be obeyed to maintain a stable society. A contrarian to this theory might argue that Positive Law theory does not account for natural biases that exist in our society and that many laws as exercised in�ict harm toward classes of individuals disproportionately to their deeds. Example: A poor farmer dumps a barrel of fertilizer into a stream that runs through his property and su�ers criminal and civil charges for a violation of the Clean Water Act. Whereas a Chief Executive O�cer (CEO) that runs a major power company that burns coal, wherein a 50-acre ash pool breeches into a nearby river creating a signi�cantly larger pollution problem earns $9.6 million dollars in salary.[1]  

Natural Law In a natural law system, one would turn to nature to determine legal outcomes, using reasoning derived from social and personal interactions that create a moral standard whereby society operates. When a society has a moral standard whereby the “norm” does not deviate too far from individual morals, such a natural law system may work. But history presents many instances where such

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societal morals deviate too far from center. Example: In 1850’s United States, half the states in the country legally provided for ownership of slaves. To the other states in the north, slavery was an abomination and illegal. The di�ering views on slavery were clearly a moral di�erence in society that could not coexist, which led to the Civil War.  

Social Contract Theory During the Age of Reason starting in 1650’s Europe, many great philosophers began challenging long-standing institutions and the premise for which those institutions existed. Part of this philosophical movement led to social contract theory which in essence examined why individuals would give up some of their personal freedoms by submitting to “government” rule in exchange for a protection of remaining rights. More speci�cally, an individual might imagine a world where only natural laws existed and each individual’s actions were governed only by that person’s speci�c power and morals. Under such contemplation, rational individuals would give up some personal freedoms in order to protect social order. Depending on government structure, a balancing act exists between what freedoms individuals are willing to forsake in compromise of preserving societal order. The Founding Fathers of the United States wanted to be clear that some rights were inalienable and could not be bargained away by government. And these rights are memorialized in the Bill of Rights to the U.S. Constitution. An example would be Freedom of Speech protections under the First Amendment to the Constitution which states:  

" Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances. "

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Figure 2: Lady Justice is blindfolded, representing fairness and objectivity. Image © Shutterstock, Inc.

  Thus, U.S. citizens would give up some rights in the great compromise to form a federal government (e.g. self- regulation of interstate commerce), but clearly those rights protected by the First Amendment were not on that list.    

Conclusion None of the theories presented can truly explain the U.S. legal system and the nature of jurisprudence in our society. Each concept presented provides examples of both positive bene�ts as well as detriments to our society. Over time, competing legal theories have merged concepts and examining our legal system through a kaleidoscope of ideas provides a more nuanced approach to learning about the law.  

PURPOSE AND CHARACTERISTICS OF THE LEGAL SYSTEM Government and Society have a true interdependence in the United States. This interdependence has been heavily tested over a very short period of time. These tests have ranged from Civil War to the World Wars to the Civil Rights Movement, all of which pushed our society to breaking points but also served to solidify the bonds that hold this country together. The system is not perfect however. Con�icts exist at many levels. The question moving forward is can the United States maintain a legal system that continues to be validated by society?  

Purpose

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The �gure on this page represents the scales of justice and Lady Justice is notably blindfolded. The blindfold is interpreted to represent objectivity, or simply stated “fairness”. This is a major theme in U.S. jurisprudence: the legal system promotes equality, in that each person is treated equally. A major problem today is that a large portion of society does not see this equal treatment in the legal system, and this perception of inequality of treatment can lead to societal rejection of the legal system.   A society that does not agree with the purpose and characteristics of the legal system will either change the system or destroy it. The purpose of the U.S. legal system is seemingly to create and maintain order and provide a venue for a redress of harms, both civil and criminal. Rational people would be in�uenced by this type of legal system and abide by a certain code of conduct. But if a large of enough class of society becomes dissatis�ed with those stated purposes of the law, then the system will be challenged.   Further, these stated purposes of the law come at great expense both in actual terms given the total costs of the legal system in the United States[1]. An expensive legal system that burdens society with a high tab and one that society also rejects as bad and unfair must adapt to societal views or it will be challenged over its validity.    

Characteristics In order for the legal system to maintain itself and provide society with the mechanism necessary to promote order, the system must balance two diametrically opposed themes: Flexibility and Predictability.   The U.S. theory of jurisprudence relies on common law and the concept of precedent, which prescribes to the notion of predictable outcomes. Judges will rely on previous case law to determine outcomes in current cases. By looking at past legal decisions to determine

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Figure 3: Supreme court justice marshall gained his civil rights credentials representing plaintiffs in Brown v. Board of Education. Image © Shutterstock, Inc.

current legal outcomes provides a level of predictability necessary for a sustainable legal system and society. These outcomes can in�uence conduct in a positive way and satisfy our individual expectations.   Further, the system often also provides enough �exibility that under certain circumstances judges may alter precedent and provide for outcomes that make more sense than relying on past decisions. As an example, two speci�c cases on this topic come to mind: Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) and Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).   In 1896, Plessy was a black man who attempted to sit in a white’s only rail car in Louisiana, when Louisiana law provided for “separate but equal” accommodations in a black’s only railway car. The Supreme Court in an 8–1 decision stated the following through the opinion of Justice Henry Billings Brown:  

" The object of the [Fourteenth] amendment

was undoubtedly to enforce

the equality of the two

races before the law, but in

the nature of things it could not have been

intended to abolish distinctions based upon

color, or to endorse social, as distinguished

from political, equality. . . If one race be inferior

to the other socially, the Constitution of the

United States cannot put them upon the same

plane. "  

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Some thirty years removed from the Union victory in the Civil War, the entire country was still grappling with an integrated society. But society changes over time, and a case with similar underpinnings came to the Supreme Court 56 years later addressing the inequality of educational opportunities between blacks and whites. Speci�cally, the Supreme Court held that segregation of children in public schools based solely on the basis of race pursuant to state laws was a violation of the laws guaranteed by the 14th amendment to the Constitution, and stated in a unanimous decision “We conclude that in the �eld of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal…”   So the Supreme Court was prepared to step in the direction that society was headed, speci�cally in the area of civil rights. And even though previous case law from Plessy – precedent – existed that would have provided the Brown Court an easy justi�cation for a predictable ruling

of “separate but equal is not a violation of the 14th

Amendment”, the Supreme Court unanimously rejected that precedent in favor of a more principled argument based on the changing face of social equality in the country.  

CLASSIFYING LAW The U.S. system of jurisprudence has separate legal classi�cations and the following Table 1.1 provides an overview.      

PUBLIC

LAWS

LEGISLATIVE

BODY

STATUTORY

LAW

COURT

SYSTEM CRIMINA

Federal Congress and Agencies

United States Code

Federal Court System

Jail/Fines

State State Legislators

State Code State Court (Usually)

Jail/Fines

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PUBLIC

LAWS

LEGISLATIVE

BODY

STATUTORY

LAW

COURT

SYSTEM CRIMINA

County County Commissioners

County Code

Common Pleas/County

Jail/Fines

Municipal City Council Municipal Code

Municipal/City Jail/Fines

  Further, entire system of U.S. jurisprudence circles around the concept of “common law.”[1] Common law dates back to England after the Battle of Hastings in 1066 when William of Normandy attempting to solidify his control and power over a divided England, devised a plan that would allow for di�erent areas in England to settle disputes under a common system. As judges rendered judicial decisions, these decisions became the basis for future judgment. Judges would confer with each other and previous decisions would hold sway over current proceedings over similar matters. The Latin concept was stare decisis translated to mean “let the decision stand” provided for more consistent legal rulings across the land. In the United States, this concept is transferred to the term “precedent”.   As society grew and more legal precedent was created, common law was codi�ed into writing by the development of statutory law, which today is created by legislative bodies such as Congress or state legislatures. Thus, U.S. law is a combination of both common law and statutory law, both which are intended to create predictability but can also be �exible and change when such justi�cations exist to make changes.      

Critical Thinking Challenge The following case represents a judge’s willingness to change precedent and thus change the law outside of the legislative process. As society desires predictable outcomes, why would the judge in this case not follow precedent? Explain.  

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Excerpts taken directly from publicly available �les.   Case 1. SUPREME COURT OF THE UNITED STATES No. 10–1259 UNITED STATES: PETITIONER v. ANTOINE JONES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 565 U.S. _____ (2012)   [January 23, 2012]

  JUSTICE SCALIA delivered the opinion of the Court.   ISSUE: We decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.   Facts: In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of tra�cking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. O�cers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.   Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee. A warrant issued, authorizing installation of the device in the District of Columbia within 10 days.   On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used

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the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a di�erent public lot in Maryland.   By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.   The Government ultimately obtained a multiple-count indictment charging Jones and several alleged co- conspirators with, as relevant here, conspiracy to distribute and possess with intent to distribute �ve kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§841 and 846. Before trial, Jones �led a motion to suppress evidence obtained through the GPS device.   The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. 451 F. Supp. 2d 71, 88 (2006). It held the remaining data admissible, because “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Ibid. (quoting United States v. Knotts, 460 U. S. 276, 281 Jones’s trial in October 2006 produced a hung jury on the conspiracy count).   In March 2007, a grand jury returned another indictment, charging Jones and others with the same conspiracy.   The Government introduced at trial the same GPS derived locational data admitted in the �rst trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.  

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In this litigation, the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required. United States v. Maynard, 615 F. 3d 544, 566, n. (CADC 2010).   The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment. United States v. Maynard, 615 F. 3d 544 (2010).   The D. C. Circuit denied the Government’s petition for rehearing en banc, with four judges dissenting. 625 F. 3d 766 (2010). We granted certiorari, 564 U. S. ___ (2011).   Opinion of the Court: The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and e�ects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “e�ect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.”   The text of the Fourth Amendment re�ects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and e�ects” would have been super�uous.   Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004). Thus, in Olmstead v. United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephone wires

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on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or o�ces of the defendants,” id., at 464.   Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government o�cers violate a person’s “reasonable expectation of privacy,” id., at 360. See, e.g., Bond v. United States, 529 U. S. 334 (2000); California v. Ciraolo, 476 U. S. 207 (1986); Smith v. Maryland, 442 U. S. 735 (1979).   After reading that case excerpt and part of the Court’s majority opinion, in all the instances where the court did not follow precedent, what was the common thread? Further, would the Court’s opinion be di�erent if:  

1. Defendant Jones abandoned his car in a public �eld and never comes back to pick it up? Would the Court allow the inclusion of the GPS tracking data into the case? What if the �eld was privately owned by a family member? What if the �eld was privately owned by a friend?

2. The Government placed a tracking app on Defendant Jones’ smart phone that acted like a GPS? Would the Court allow the inclusion of the app tracking information into the case?

 

SOURCES OF LAW The Constitution (Federal and State) The U.S. Constitution and each separate and distinct state Constitution are foundational laws, ones that form and shape

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Figure 4: Federal Capital Building, Washington, D.C. Image © Shutterstock, Inc.

governance at the very beginning of the founding of the country and each state, respectively. Because these foundational documents are so essential to the very existence of the federal and state governments, these laws cannot be simply or easily changed by the legislatures.   At the state level, each state will have its own speci�c way of amending its Constitution. States will often require a citizen referendum to change a state Constitution, or a legislative referendum both of which would have to be approved by at least a majority of voters during an election cycle.   To change the U.S. Constitution is di�cult, and this is done by constitutional amendment where the process is outlined in Article V of the Constitution itself. Examples of these amendments include prohibition against liquor sales, the repeal of prohibition against liquor sales, and woman’s su�rage just to name a few. This will be discussed in greater detail later in the text.  

Federal Statutes The House of Representatives and the Senate combine to create Congress, and that legislative body is responsible for creating federal statutory law. These laws when passed are then transcribed and become part of the United States Code (U.S.C.). When citing these codes, it is customary to utilize the abbreviation U.S.C. Thus, Title 17 of the U.S.C. for example deals with Copyrights and it has 13 chapters under that law. So 17 U.S.C. §7 is o�cially Chapter 7 of Title 17 and the sections that are within that chapter relate to the creation of the Copyright O�ce in the United States among other things:  

" The Register of Copyrights is authorized to establish regulations not inconsistent with law

for the administration of the functions and

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Image © Shutterstock, Inc.

duties made the responsibility of the Register

under this title. All regulations established by

the Register under this title are subject to the

approval of the Librarian of Congress. "   This is an example of a federal law that has been passed by Congress. Other sources of federal law come directly from the President through Executive Orders. For example, President John F. Kennedy created what is now the model for the President’s Council on Youth Fitness by issuing EO 10931 as well as the Unionization of federal employees by issuing EO 10988 that recognized federal employees right to collectively bargain. Every President of the United States has issued an executive order except William Henry Harrison, whose term in o�ce was tragically cut short to 32 days as he died from complications of pneumonia.   And lastly, federal laws also come from federal administrative agencies in the form of regulations. Each administrative agency is given regulatory roles by Congress. Each U.S.C. provides for the regulatory body responsible for carrying out the regulations under the law. These regulations will be found in the Code of Federal Regulations (CFR). For example, the Security and Exchange Commission (SEC), which regulates (among other things) the stock market will place its stock market regulations in Title 17 C.F.R. Chapter II which provide for rules governing the SEC as well as those governed by the SEC.  

State Statutes and Regulatory Enforcement States have statutes enacted by legislatures similar to Congress. States also have administrative agencies who regulate businesses and industry through regulations. Using Ohio as an example, its bicameral legislature enacts laws which then get

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codi�ed (written and aggregated) into Ohio Revised Code (O.R.C.). If one desires to understand Ohio’s legal views on bank regulation, then reading Title 11 O.R.C. XI Financial Institutions would be a good starting point. The administrative agency responsible for regulating banks in Ohio is the Department of Commerce, and the Superintendent of Financial Institutions is the chief regulator. State statutes combined with municipal ordinances (e.g. local speed limits) and private laws (e.g. contracts between private parties) combine to form the basis for citizen regulation at the state level.  

Court Decision (Precedent) When a crime or a civil violation is alleged, then the court system may get involved. But language in statutes may not be clear. Determining whether the statute in question actually applies to a particular set of facts may not be clear. The job for interpreting statutes or de�ning disputes between parties often falls on the judge’s shoulders. The judge’s ruling on how the statute should be interpreted or what remedies are available to an “injured” plainti� will govern future court cases as the judge’s ruling is considered “precedent”. Common law is founded on this notion of judges interpreting statutory law in light of the facts and circumstances of a legal matter and their legal analysis of the scope and intent of the statute at hand becomes “law.”  

Footnotes

1. Placeholder: Source Material China largest economy. 2. U.S. Securities and Exchange Commission, Duke

Energy 10K Filing 2013. 3. Language was retrieved directly from an image of

the original draft document, dated September 25, 1789.

4. Paci�c Research Institute study in 2007 entitled: Jackpot Justice: the True Cost of America’s Tort System. Total Criminal Justice System Costs $865 billion annually. Federal Court Budgets 2014: $6.7 billion, per the American Bar Association. Other

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signi�cant costs not so listed: State Criminal Court costs and both Federal and State Criminal Incarceration Costs.

5. The state of Louisiana uses Civil Law to guide its legal system as it adopted the French system prior to the Louisiana Purchase in 1803. Although more than one U.S. state’s borders were included in the purchase, only the state of Louisiana was su�ciently settled by the French and their descendants to maintain the Civil Legal System.