OBE 118 – Legal Environment of Business
INTRODUCTIONDr. Donald L. Carper
Law is powerful
• Affects all people, from CEO’s to children• Affects most of life, from work to leisure
Law is important But which is more important -- written law or
the people who enforce it?
Law is fascinating Complex, but never just theoretical
To examine law is to examine social life
One person alone does not require law
Any investigation about law could begin or include
Definitions of law Philosophy of law History of law Functions of law and Sources of law
All of these topics are interrelated
Whatever definition of law chosen there exists a set of rules or “general standards of conduct, established and enforced by government officials.”
Law consists of
Norms (standards of behavior)
Regularly enforced by coercion
By persons authorized by society
As stipulated by courts of law
Classifications & Categories of LAW helpful to understanding law
Classifications & Categories of Law helpful to understanding Law
PUBLIC LAW PRIVATE LAW
CRIMINAL LAW CIVIL LAW
SUBSTANTIVE LAW PROCEDURAL LAW
COMMON LAW STATUTORY LAW
LAW EQUITY
Private v. Public Law
• Public law: Body of law directly concerned with public rights and obligations.
• Private law: Body of law regulating the rights and duties existing between private persons. The rights and duties are created by the affected parties.
Civil v. Criminal Law
• Civil law: Body of law directly concerning the rights and duties between parties.
• Criminal law: Body of law dealing with crimes and their punishment
CONTRAST BETWEEN CIVIL AND CRIMINAL LAW
Civil Criminal
Nature Rights and duties of individuals to each other
Wrongs against society as a whole
Person Initiating Action
Plaintiff or person injured
Either federal, state, or local prosecutor
Burden of Proof in Trial
Preponderance of the evidence
Beyond a reasonable doubt
Result sought Money damages or equitable remedy
Death, fine or imprisonment
Substantive v. Procedural Law
• Substantive law: General principles and detailed rules defining legal rights and duties.
• Procedural law: General principles and detailed rules that define the methods of administering the substantive law
SUBSTANTIVE LAW: General principles and detailed rules defining legal rights and duties.
Example of a substantive law
Definition of minor: “a person below the age of legal competence. For most purposes, in most states, minority ends at age 18. For some purposes, such as the purchase and consumption of alcoholic beverages, it may end later, up to the age 21.”
Procedural Law Examples
•Rules of evidence such as the hearsay rule •Method of filing a lawsuit such as the requirement of a complaint and service of summons•To be able to seize assets of a judgment debtor the law requires a creditor to file an affidavit as to the debtor’s ownership of any assets to be seized
EXAMPLES
Substantive law Procedural law
Agency Administrative procedure
Contracts Appellate procedure
Criminal law Criminal procedure
Partnerships Evidence
Torts Civil procedure
EXAMPLES
Substantive law Procedural law
Agency Administrative procedure
Contracts Appellate procedure
Criminal law Criminal procedure
Partnerships Evidence
Torts Civil procedure
Case: Oculist's Case (1329), p. 8
• This seal was found in the bed of the Moselle River in France. The Romans were the first people to have specialized eye doctors, called oculists, who were devoted to treating eye diseases such as cataracts
Case: Oculist's Case (1329), p. 8
• The defendant, attempting to heal the plaintiff, left him blind in one eye. The plaintiff has sued in trespass
• What was the defendants response?
• Was it procedural or substantive?
• How did the court rule?
Case: Oculist's Case (1329), p. 8
• Consider the underlying facts and the probable legal treatment today.
Common Law v. Statutory Law
• Common law: Laws from the courts as opposed to a legislature or court of equity Common law is also called unwritten law.
• Statutory law: Laws enacted by Congress state legislatures or local government. Statutory law is also called written law.
COMMON V. STATUTORY LAW
Common and also called case law
From the courts
After the fact
Narrow
Based on actual situations and conflict
Law maker is neutral
Law from court cases may be changed in the future by courts or by the legislature
COMMON V. STATUTORY LAW
STATUTORY LAW
From the legislature and executive branch
Prospective
Can be broad or narrow
Can be initiated at any time by legislator
Lawmaker can be an advocate
Interpreted by the courts
May only be changed by courts only if unconstitutional
COMMON LAW STATUTORY LAW
Creation Judicial branch through decisions in cases appearing before the courts
Legislative branch through a formal law-making process
Form Rules found in official fact patterns & decisions of prior cases
Codified text
Scope Narrow-limited to actual cases
Broad-subject only to constitutional limitations
Effects of Social Forces
Indirect-judges somewhat insulated from political pressure
Direct-Through the political process
STATUTES, CODES, AND ORDINANCES
STATUTE Single Legislative enactment. A completed and signed bill.
CODE Statute indexed by subject matter or a comprehensive statute
ORDINANCE City or County Statute
Equity
• Equity: A civil trial held without a jury when relief sought by the plaintiff is equitable in nature, such as an injunction, or a divorce or dissolution of a marriage.
• Other than equity: Often referred to as the common law.
Equity Other than Equity
Subject Matter Family law, matter juvenile, probate trusts, foreclosure, when remedy it law is inadequate
Everything but equity
Fact Finding No jury-chancellor of trial makes findings and a issues degree
Jury-leading to judgment
Remedies Specific performance, injunction, recission, restitution, reformation
Money damages or replevin
Enforcement Contempt of court Can attach defendant’s property
SOURCES OF LAW
• Constitutional law
• Treaties• Administrative
law• Statutory law• Case law
• Federal law
• State law
Constitutional
• The U.S. Constitution is the Supreme Law of The United States.
• State constitutions are supreme within their own borders to the extent that they do not violate or are inconsistent with the U.S. Constitution or other federal law.
SOURCE DESCRIPTION
TREATIES Agreements With Foreign Nations made by the President and ratified by a 2/3 vote of the Senate.
An Exclusive Federal Function.
SOURCE DESCRIPTION
STATUTORY LAW Created by Federal, State, and Local Legislatures or Governing Bodies.
Neither Federal Nor State Statutes are Valid if in-consistent with the U.S. Constitution.
State Statutory Law is invalid if inconsistent with its Constitution.
Uniform Statutes Create uniform State Law in those adopting States.
Administrative Law DESCRIPTION
Law Concerned with the power and actions of Administrative agencies at all levels of government.
Enabling Legislation from the U.S. Congress create federal administrative agencies. Also created at State and local levels of government.
Agency functions include:Rule-making
InvestigationEnforcement, &Adjudication.
COMMON LAW DESCRIPTION
Use of past judicial decisions and reasoningthrough the applicationof the doctrine of staredecisis-the rule of precedent-in deciding cases.
Originated in England.
Applies to situations not otherwise covered by statutory law.
COMMON LAW DESCRIPTION
Use of past judicial decisions and reasoningthrough the applicationof the doctrine of staredecisis-the rule of precedent-in deciding cases.
Originated in England.
Applies to situations not otherwise covered by statutory law.