LAW class quiz - 50 multiple choice questions
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CBLPPchp1.pptChapter 1
Introduction
Law is a set of guidelines that help maintain order in a society
A civilized society is one that no longer settles private disputes through private violence
This digital generation is conducting business online on a daily basis—often committing to contracts with the simple click of an “I Accept” button
In addition to studying business law involving traditional contracts, it’s important to understand the potential ramifications of online contracts
I. Legal Philosophies
- Natural Law
- Positive Law
- Legal Realism
A. Natural Law
Right or Wrong
Belief that there are universal laws guided by a moral reasoning that enable all to know the difference between right and wrong
B. Positive Law
Ruling Authority
A just law is one created by the sovereign, or ruling authority
A positivist believes that there is no unjust law if it was enacted by the recognized political authority
C. Legal Realism
Decision-Maker’s Discretion
Concerned with results
Recognizes that lawmakers are influenced by many factors, and that these influences affect the decision being made
II. Eight Sources of Law
- U.S. Constitutions
- Federal Statutes and Treaties
- 50 U.S. State Constitutions
- Individual State Statutes
- Executive Orders
- Local Area Ordinances
- Administrative / Regulatory Law
- Decisions made by federal and state courts
- U.S. Constitution
U.S. Constitution has been supreme law of the land since 1787
All federal and state laws must be consistent with the Constitution to be enforced
The first three Articles of the U.S. Constitution establish the basic structure of the federal government
Article I -
Creates the congress
Senate and House of Representatives
Vests the congress with legislative power
Article II -
Establishes the presidency and its duties
Article III -
Creates the judiciary
Each branch is responsible for a different governmental duty
Separation of powers between branches serves as a check and balance
Separation stabilizes our government
B. Federal Statutes and Treaties
Legislative branch provides the second source of law, called statutory law
THE COMMERCE CLAUSE – Article 1, Section 8, Clause 3 applies to both individuals as well as businesses. The provisions provide power to regulate Commerce with foreign nations, among several states and Indian Tribes
THE CONTRACT CLAUSE – Article 1, Section 10, Clause 1 prohibits states from enacting any law that retroactively prohibits contract rights
B. Federal Statutes and Treaties
UNIFORM LAW COMMISSION – this commission was established to create statutory laws that are uniform throughout the states
UNIFORM COMMERCIAL CODE - The UCC has become part of each state’s statutory law, and while each state has made various changes, the UCC has become relatively standardized across all 50 states
The UCC addresses topics of law involved in commercial transactions
Sales law
Commercial paper
Secured transactions in personal property
B. Federal Statutes and Treaties
TREATIES – another type of law created by the federal executive branch is the international treaty
EXECUTORY
SELF-EXECUTING
Foreign Corrupt
Practices Act 1977 (1988)
Makes it a crime when an officer, director, employee, agent, or a stockholder acting on behalf of the business uses the mail or any means of interstate commerce to offer to pay, or actually pay, anything of value to a foreign official, foreign political party official, or foreign political candidate, when that payment is meant to influence that official in order to obtain or retain business for the U.S. company
Willful violations of the FCPA
$2,000,000 fines for business
$100,000 fines for individuals and imprisonment up to 5 yrs
C. 50 State Constitutions
Each state has their own constitution
These constitutions give each state a governmental structure that mirrors our federal government
The states derive their power to enact laws based upon the 10th Amendment to the United States Constitution
D. State Statutes
Each year legislatures add to the statutory laws of their state
These statutes are placed in codes that are compilations of statutes
When a law has been placed into one of the existing codes, that law has been CODIFIED
E. Executive Orders
EXECUTIVE ORDERS, when issued by the president, governor, or head of a local government, are another type of law issued by the executive branch as a means of enforcing existing laws
F. Local Ordinances
Statutory laws that occur at local levels are called ORDINANCES
Dog leash laws / Skateboarding
Laws dealing with signs
Land use zoning laws
G. Administrative Law
Administrative law was created by necessity in order to have a more proactive mechanism for regulating business activities
The ADMINSTRATIVE AGENCY, as part of the executive branch, appeared as Congress realized that there was a need for more specialized oversight of various society functions
H. Decisions by Federal and State Courts
Decisions by state and federal courts are a primary source of U.S. common law.
COMMON LAW is a general body of law that began in England based on court decisions, customs, and usage in the community rather than codified law
Many of today’s legal principles had their origins in the common law
Contract law
Tort law
Agency law
Common law is “judge-made”; it is considered unwritten law, while statutory law is written
Judicial Decisions
In the United States, JUDICIAL DECISIONS (case law) are produced when a judge decides a case and announces the reasoning behind the ruling
Previous court decisions have become “precedent” for deciding future cases
The legal principle governing precedent is called STARE DECISIS which provides a degree of certainty and stability to society and makes the laws predictable
Precedents are to be used when the facts of a case is similar to the precedent case
Judicial Decisions (cont.)
One limitation under Article II of the U.S. Constitution states that there must be a “case in controversy” before the legal issue may be considered…a judge is not able to call a dispute into his courtroom for resolution
Decisions rendered by appellate judges are published in a set of books called REPORTERS
RESTATEMENTS are published by the American Law Institute which provide coverage of the common law areas such as torts, contracts, agency and property
1. Judicial Stability and Judicial Flexibility
Requiring courts to follow precedent leads to judicial and societal stability
When precedent cannot be found to help resolve an existing dispute, the court will try to use a similar previous decision as a basis for logical or rational application to resolve the current dispute
“Where the reason is the same, the rule should be the same.”
Judicial flexibility helps when substantial justice might require that the court ignore or bend the precedent in order to reach a proper or just result
III. How to Find California Law
IV. Classifications of Law
- Substantive or procedural
- Public or private
- Civil or criminal
- Law vs. Equity
A. Substantive vs. Procedural
Substantive laws affect individuals by either granting them legal rights or imposing legal duties on them
Laws that prohibit the possession of illegal substances are SUBSTANTIVE in nature, since they impose a duty on individuals to not possess those illegal substances.
PROCEDURAL LAWS enforce the rights or duties granted by the substantive laws by imposing a structure that must be followed when establishing or enforcing substantive laws
RULES OF CIVIL PROCEDURE
RULES OF EVIDENCE
B. Private or Public
The body of law governing interaction between individuals is considered PRIVATE LAW
PUBLIC LAW deals with how the government is organized and how it interacts with the people of the country
C. Civil or Criminal
CIVIL LAW is concerned with how individuals interact with each other
CRIMINAL LAW is concerned with behavior that is considered unacceptable to society at large
D. Law vs. Equity
When a person is seeking monetary damages, he is seeking a LEGAL REMEDY
A REMEDY IN EQUITY attempts to create fairness and justice for a person who has been harmed and money damages are not sufficient
SPECIFIC PERFORMANCE
RESCISSION
INJUNCTION
REFORMATION
RESTITUTION
V. Role of Attorneys in the Legal Process
- Finding an Attorney
- Fee Arrangement
A. Finding An Attorney
Recommendations from family and friends
State Bar-certified lawyer referral services
Yellowpages.com
Local Bar Association
B. Fee Arrangement
CONTINGENCY FEE AGREEMENTS – the attorney agrees to take a percentage of the money you win in a lawsuit
Must be in writing and state the percentage agreed to
Agreement should contain a statement of the general nature of the legal services provided to the client
NON-CONTINGENCY AGREEMENTS – use hourly fees, fixed fees, or a retainer
FEE DISPUTES
Switch attorneys and have files sent over
Try fee arbitration
Report attorney to State Bar Association
Sue your former attorney
VI. Briefing a Case
Reading and Briefing a Case
Locate the NAME OF THE CASE and where to locate it, e.g.
Li v. Yellow Cab Company of California
13 Cal.3d 804,532 P.2d 1226, 119 Cal.Rptr. 858 (1975)
FACTS - summarize the facts of the case
ISSUES - determine the issues present in the case
DECISION - the court’s ruling
REASONING - the court’s reasoning is then analyzed
