Biz law

INTRODUCTION TO LAW

I. ORIGINS OF OUR LAW

A. ENGLISH ROOTS

1. English Common Law

2. Common Law = Case Law

3. Precedent/Stare Decisis

Means that judges are required to decide current cases based on previous rulings.

B. SOURCES OF CONTEMPORARY LAW

1. Constitutions

a. U.S. Constitution

b. State Constitution

2. Statutes

Laws passed by a legislative body.

3. Common Law/Case Law

Rulings in court cases in which judges of lower courts are obligated to follow.

4. Courts of Equity

Where a court attempts to make fair and just decisions when there is no direct law on the issue before them. An example is an injunction.

5. Treaties

When ratified, they are as binding upon all citizens as any federal statute.

6. Executive Orders

Issued by the President have the same effect as law. (i.e. President Clinton left office making several executive orders that are law).

C. CLASSIFICATIONS OF LAW

1. Criminal Law

Rules of law which regulate and define offenses against society as a whole and establishes a public redress for wrongs against society.

2. Civil Law

Regulates the rights and duties between parties and establishes a private redress for wrongs against the parties involved.

3. Substantive Law

States the rights and duties of the parties.

4. Procedural Law

Rules governing the mechanisms or methods to be used in settling the disputes between parties.

D. JURISPRUDENCE

1. Legal Positivism

The legal philosophy holding that the law is what the sovereign says it is, regardless of its moral content.

2. Natural Law

The theory that an unjust law is no law at all, and that a rule is only legitimate if based on an immutable morality.

3. Legal Realism

The legal philosophy holding that what really influences law is who makes and enforces it, not what is put in writing.

II. JUDICIAL DECISION MAKING

A. FACTORS OF INFLUENCE

Judge’s decisions are not based on some type of mathematical formula, nor do judges have computers for brains that result in some automatic just decision. Douglas Whitman and John William Gergacz in their text entitled The Legal And Social Environment Of Business, 4th, pp. 96-101, Ed., McGraw-Hill (1994) suggest that a judge’s decision, right or wrong, is influenced by a number of factors:

1. Judge’s Personality;

2. History and Custom;

3. Balancing of Interests;

4. Fundamental Rights;

5. Deferring to Other branches of Government;

6. Use of non-legal materials; and

7. Precedent.