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IntroductionLegalEnvironmentofBusiness20212.pdf
Legal Environment of Business
Semester 2, January 2021– May 2021
Dr. Paula Kenny, BA, MSocSc, PhD, DLSP
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Course Description
This course presents a study of the interrelationships
among business, government, and society as
reflected in the legal systems in which they operate.
In addition to examining specific laws and legal
issues, such as business transactions, employer-
employee relations, government regulation and
consumer law, students become familiar with the
way in which laws develop and change. Special
emphasis is on the social and ethical issues that
arise in business law.
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Course Learning Outcomes
Explain the role of law and ethics in business and society and
the legal system's role in regulating business.
Understand the ways in which law both facilitates and restricts
business activities.
Apply legal analysis principles to resolve business problems.
Analyse contemporary legal issues to promote an interest in the
legal environment and a framework for maintaining that interest
beyond the classroom to enhance lifelong learning.
Communicate effectively about legal and ethical issues using
appropriate oral and written conventions.
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Course Workload
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The Concept of Law
“It is not the responsibility of the government or the legal
system to protect a citizen from himself” Casey Purcell
The law is not an abstract concept that only exists within the
confines of the courts.
It is intrinsically linked to everything we do or could do!, from
purchasing an item in a shop to committing murder.
We do not always encounter the law while going about our
everyday lives, but it is always present in the background,
generally only surfacing when it is broken.
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Definitions of Law
• Law is governmental social control . . . the normative life of a
state and its citizens. (Black 1972: 1086)
• The prophecies of what the courts will do in fact and nothing
more pretentious, are what I mean by law. (Holmes 1897: 457)
• Norms, mores, and folkways influence the creation of laws
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Main Focus of Definitions
• Public law and private rules.
• Written law and law in action
• Written law and coercion.
• Morality and law.
• Law and custom.
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Functions of Law
• Social control
Dog ordinance
• Dispute resolution
MLK national holiday
• Social change
Brown v. Board of Education
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Dysfunctions of Law
• Harassment
• Bias
• Repression
• Rigidity
• Precedent
• Unequal access to justice
• Conservatism
• Political activism
• Impede social change
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Harassment
• Legal actions may be brought to harass individuals or to
gain revenge rather than redress a legal wrong.
• How might restraining orders be used for harassment?
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Bias
• The law may reflect biases and prejudices or reflect the
interest of powerful economic interests.
• White collar crime prosecution rates and punishment
duration
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Repression
• The law may be used by totalitarian regimes as an
instrument of repression.
• Laws in Soviet Countries
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Rigidity
• Rigidity: The law is based on a clear set of rules.
• Battered women defense
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Precedent
• The law, because of the reliance on precedent, may be slow to change. Judges also are concerned about maintaining respect for the law and hesitate to introduce change that society is not ready to accept.
• 1896, in Plessy v. Ferguson
• 1954 Brown v. Board of Education
• What is precedent? When a court is faced with an issue or case in a common law system, the court will rely on past case law (previous decisions of the court) in relation to the issues before it. If the issue has been previously decided by an earlier case, the court will be bound by the previous decision, and will follow and apply it to the current case before it. This is what is known as the doctrine of precedent, which is the central component of the common law system.
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Unequal Access to Justice
• Money and resources influence trial outcome
• Bail affordability
• Public versus private defense
• Citizenship status and availability of counsel
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Conservatism
• In times of war and crisis courts reluctant to second guess
political decisions.
• Korematsu v. United States, 323 U.S. 214 [1944].
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Political Activism
Elections influencing policy
https://www.youtube.com/watch?v=3_vNwQ-i0fA
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Impede Social Change
• The law may limit the ability of individuals to use the law
to vindicate their rights and liberties.
• 1996 Congress passed the Prison Litigation Reform Act
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The Study of Law
• Black letter law
• Public law (criminal law, constitutional law, and
administrative law)
• Private law (contract, torts, property)
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The Study of Jurisprudence
• jurisprudentia (Latin):the study, knowledge, or science of
law
• The Queen v. Dudley and Stephens (14 Q.B. 273 [1884])
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The Study of Law & Society
Studies the external influences on law development:
politics, science, psychology, anthropology etc.
Executive Order 9066
Civil Liberties Act of 1988
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Perspectives on Law & Society
Consensus perspective: society viewed as sharing
common values and as relatively stable, and the law is
an instrument of resolving occasional disputes
Conflict perspective: society is viewed as composed of
competing groups, and the law is an instrument of
coercion
https://www.youtube.com/watch?v=ZMPIEcVGttw
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Families of Law
There are 4 families of law:
Common law
Civil law
Socialist law
Islamic law
*International law, while not one of the four families of law is increasingly important
https://www.youtube.com/watch?v=8Zeein83DdU
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Categories of Law
Criminal
-V-
Civil
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Civil Law
Relates to Individual’s relationships with others
Employment, Contracts,
Consumer Disputes
Adopting a Child, Divorcing, Buying a House
Aims to protect the interests and rights of private citizens,
adjudicating upon a dispute in relation to property rights
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Criminal Law
Relates to public wrongdoing
The state brings criminals to court on behalf of
the citizens of the country
Murder, Robbery, Careless Driving
Assault, Public Order
Punishments
Fines, Imprisonment, Community Service
Judicial Discretion
Imposes punishment on those who commit
offences contrary to public order/morals. If
somebody is assaulted, criminal law is the mode by which the
supposed wrongdoer is tried & punished, if appropriate.
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Early English Courts
Also called “king’s courts” where judges were appointed
by the king.
Remedies limited to those provided at law, i.e., land,
chattel, money.
Judges resolved disputes by application of rules of law to
the facts of the case before the court.
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Courts of Equity
Also called courts of chancery.
Equitable relief was sometimes available in instances
where a strict application of the law to the facts of the
case compelled a result that was legal but unjust.
Courts of Equity operate today in, e.g., Delaware and
Virginia.
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Remedies
Today federal and state courts of general jurisdiction
have consolidated remedies at law and remedies at
equity.
Generally, the same court can fashion a remedy that
includes both damages and equitable or injunctive relief.
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Doctrine of Stare Decisis
Stare decisis is a Latin phrase meaning “to stand
on decided cases.”
Makes the law stable and predictable.
Increases judicial efficiency by relieving
courts of having to reinvent legal principles
for each case brought before them.
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Stare Decisis and Precedent
Stare decisis is “judge made law” based on precedent.
Precedents are judicial decisions that give rise to legal principles that can be applied in future cases based upon similar facts.
Precedents and other forms of positive law, such as statutes, constitutions, and regulations, are referred to as binding authority and must be followed.
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Cases of “First Impression”
In cases of “first impression” where there is no
precedent, the court may refer to positive law,
public policy, and widely held social values in
order to craft the best new precedent.
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Stare Decisis and Legal Reasoning
Method used by judges to reach a decision.
Many courts and attorneys frame decisions and
briefs using the IRAC format: Issue, Rule,
Application (Analysis), and Conclusion.
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Types of Legal Reasoning
Deductive Reasoning: Makes use of syllogism, a type of logical relationship involving a major premise and a minor premise.
Linear Reasoning: Proceeds from point to point, with the final point being the conclusion.
Reasoning by Analogy: Analysis that compares facts of present case with facts of similar previously- decided cases.
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Classifications of Law
Procedural
-V-
Substantive
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Classifications of Law
Substantive law embraces the entire body of law that confers
rights and interests on private persons or alternatively, imposes
obligations and liabilities on persons within the state.
Procedural law on the other hand, refers to the body of rules
concerned with the implementation of substantive law and
consists of the law of procedure and evidence.
In the course of arguing a substantive point of law, procedural
law will always have to be followed. While cases can often be
decided on a procedural point, the main crux of the a case
will rest on the substantive law.
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Example of the Impact of Procedural
Law on Substantive Law
John takes a case against Mary for crashing her car into his
front driveway. However, Joe’s lawyer fails to file the necessary
proceedings within the time limited by statute. Joe’s action
against Mary will be grounded in the substantive law i.e the
tort of negligence (will be examined in greater detail in future
lectures). However, his case will not succeed as his lawyer
failed to abide by the procedural law in the area.
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Substantive Law
Can be further divided into two separate sub categories
Public Law embraces constitutional law, administrative law and
criminal law.
Administrative law is the body of law that governs the administration
of the State and the operation of public authorities. The range of
bodies which are subject to administrative law include the Executive,
Ministers of State, semi State bodies, the Police, the Defence Forces,
Prison Governors, and statutory bodies created under legislation.
Private Law is concerned with the relationship between private
individuals but can also concern the actions of a state body, if
that body is acting in a private capacity.
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Private Law: Subcategories
Private law is made up of a number of different sub-categories of law to cover all the facets of human relationships. The core categories are as follows;
Contract Law: determination of rights created by an agreement, oral or written, entered into between two parties.
Tort Law: concerns private wrongs which usually result in an injury to another i.e. assault, negligence. Tort is normally concerned with compensation for injury, but other remedies are available
Property Law: governs the interests held in and over property, both real and personal.
Private law can be further divided into distinctive bodies of law which contain relevant elements of contract law, the law of torts and property law. These include family law, company law, labour law, commercial law, intellectual property law, sport and the law and civil liberties. All of the above categories of law operate within the one system: The Common Law System
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Cyberlaw
Cyberlaw is an emerging body of law that applies to
transactions on the internet.
Generally, it consists of traditional legal principles as
applied to the web.
Electronic commerce and contracting is becoming a
more accepted way of doing business in the global
economy.
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How to Read &
Understand Case Law
Legal cases are identified by a “legal citation” (or a “cite”)
as the example below:
Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168 (2nd Cir. 2000).
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Title: First Party is Plaintiff, second
party is Defendant. The parties
are either italicized or
underlined.
How to Read &
Understand Case Law
Legal cases are identified by a “legal citation” (or a “cite”)
as the example below:
Federal Express Corp. v. Federal Espresso, Inc.,
201 F.3d 168 (2nd Cir. 2000).
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Case is found in volume 201 of
the 3rd Federal Supplement,
page 168.
How to Read &
Understand Case Law
Legal cases are identified by a “legal citation” (or a “cite”)
as the example below:
Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168 (2nd Cir. 2000).
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Case was decided by the
United States Second
Circuit Court of Appeals in
2000.
Business People & the Law
Laws regulate all areas of business.
Factors business owners must consider:
Is contract enforceable?
Contract for goods vs. services?
What happens if someone breaches the contract?
Dispute Resolution?
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Philosophy of Law
Justice: What's The Right Thing To Do? Episode 01
"THE MORAL SIDE OF MURDER”
https://www.youtube.com/watch?v=kBdfcR-8hEY
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