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CHAPTER 1

INTRODUCTION to LAW and LEGAL REASONING

Wests Business Law


10th Edition
Kenneth W. Clarkson, University of Miami Roger LeRoy Miller, Institute for University Studies, Arlington, Texas Gaylord A. Jentz, University of Texas, Austin, Emeritus Frank B. Cross, University of Texas, Austin
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1: Schools of Jurisprudential Thought


Natural Law view. Positivist view. Historical view. Legal Realism view.

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The Natural Law School


Assumes that law, rights and ethics are based on
universal moral principals inherent in nature discoverable through the human reason. The oldest view of jurisprudence dating back to Aristotle. The Declaration assumes natural law, or what Jefferson called the Laws of Nature.
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Natural Law: Rev. Martin Luther King, Jr.


Letter from the Birmingham Jail, April 16, 1963. [T]here are two types of laws: just and unjust laws. . . . A just law is a man-made code that squares with the moral law . . . . An unjust law is a code that is out of harmony with the moral law. . . . An unjust law is a human law that is not rooted in eternal and natural law.
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The Positivist School


Law is the supreme will of the State that applies
only to the citizens of that nation at that time. Law, and therefore rights and ethics, are not universal. The morality of a law, or whether the law is bad or good, is irrelevant.

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The Historical School


Emphasizes the evolutionary process of law. Concentrates on the origins of the legal system. Law derives its legitimacy and authority from
standards that have withstood the test of time. Follows decisions of earlier cases.

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Legal Realism
Jurisprudence that holds law is not simply a
result of the written law, but a product of the views of judicial decision makers, as well as social,economic, and contextual influences.

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2: Business Activities and the Legal Environment


Law regulates many different areas of business. Study of business law also involves a knowledge
of ethics in decision-making. Many different laws may affect a single business transaction.

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3: Sources of American Law


U.S. and State Constitutions. Statutory Lawfederal, state and local. Administrative regulations and decisions. Case Law and Common Law Doctrines.

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4: The Common Law Tradition


American law is based largely on English
Common Law which was based largely on traditions, social customs, rules, and cases developed over hundreds of years.

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The Common Law Tradition [2]


At common law, there were two separate court
systems with two different types of remedies:
COURTS OF LAW (monetary relief), and COURTS OF EQUITY (non-monetary relief) based on notions of justice and fair dealing.

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Courts of Law
Also called kings 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 in Delaware. 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. Equitable Maxims.

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Legal and Equitable Remedies Today


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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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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Departures from Precedent


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 (What is the question to be resolved?) Rule (What law governs this matter?) Application (Apply the law to the facts) Conclusion (Decision or Verdict)
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Forms 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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5: The Common Law Today


Common law today governs transactions not
covered by statutory law. Restatements of the Law:
American Law Institute. Summarize the common law of most states.

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6: Classifications of Law
Every type of law will be either:
Civil or Criminal, and either Substantive or Procedural, and either Public or Private.

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Civil vs. Criminal


Civil law defines the rights between
individuals or individuals and governments. Criminal law defines an individuals obligations to society as a whole.

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Substantive vs. Procedural


Substantive law defines or creates the rights
and obligations of persons and governments. Procedural law provides the steps one must follow in order to avail oneself of ones legal rights or enforce anothers legal obligations.

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CyberLaw
Not really a new type of law. Traditional legal rules applied to online
transactions. Applies to advertising, contracting, banking, filing documents with courts, employment relations and other transactions.

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7: Finding Primary Sources of Law


Finding Statutory Law.
United States Code (USC). http://uscode.house.gov/search/criteria.shtml State Statutes. Finding Administrative Law. Code of Federal Regulations (CFR). http://www.access.gpo.gov/nara/cfr/cfr-table-search.html Finding Case Law (at Findlaw.com). Supreme Court: http://www.findlaw.com/casecode/supreme.html Federal Courts: http://www.findlaw.com/casecode/courts/index.html State Courts: http://www.findlaw.com/11stategov/index.html
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8: How to Read & Understand Case Law


Legal cases are identified by a legal citation (or a cite) as the sample below:

D.A.B.E., Inc. v. City of Toledo, 393 F.3d 692 (6th Cir. 2005).
Title: First Party is Plaintiff, second party is Defendant. The parties are either italicized or underlined.
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8: How to Read & Understand Case Law


Legal cases are identified by a legal citation (or a cite) as the sample below:

D.A.B.E., Inc. v. City of Toledo, 393 F.3d 692 (6th Cir. 2005).
Case is found in Volume 393 of the Federal 3rd Supplement at page 692.

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8: How to Read & Understand Case Law


Legal cases are identified by a legal citation (or a cite) as the sample below:

D.A.B.E., Inc. v. City of Toledo, 393 F.3d 692 (6th Cir. 2005).
Case was decided by the United States Sixth Circuit Court of Appeals in 2005.

COPYRIGHT 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license.

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