BMGT380 - Chapter 1: The Nature of Law

Constitution, Statutes, Common Law, Equity, Executive Orders, Treaties, Ordinances, Regulations

sources of law

constitutions

structure government, separation of powers, federalism

statutes

laws created by elected reps

uniform acts 

model statues drafted by private bodies of lawyers and scholars - do not become law until enacted 

common law

made by judges through cases, state & federal courts apply it, precedents

stare decisis

let the decision stand 

restatements

collections of common law rules, not binding to courts, not law, persuasive & sometimes adopted

equity

equitable remedies awarded by equity courts

injunction

court order forbidding a party to do some act or commanding him to perform some act

specific performance

party ordered to perform according to terms of contract

reformation

court rewrites contract’s terms to reflect the parties’ real intentions

rescission

cancellation of a contract and a return of the parties to their precontractual position

administrative regulations and decisions

gain ability to make law through delegation (grant) of power from legislature

-appear precise form in one authoritative source

-body enacting not elected officials

-agency decisions legally binding

treaties 

made by the president w/foreign govt & approved 2/3 U.S. Senate 

ordinances

resemble statues

ex) school districts, counties, municipalities, townships

executive orders

legislative delegation

federal supremacy

U.S. Constitution, federal laws enacted pursuant to it, & treaties are supreme law of land

classifications of law 

1) criminal law & civil law 

2) substantive law & procedural law 

3) public law & private law 

criminal law

law under which government prosecutes someone for committing a crime

civil law

obligations that private parties owe to each other

substantive law

sets the rights & duties of people as they act in society

procedural law

controls behavior of government body 

public law

concerns powers of government & relations between government and private parties

Ex) constitution, administrative, criminal

private law

establishes a framework of legal rules that enables parties to set the rights & duties they owe each other

positive law

rules laid down by recognized political authority

legal positivism 

-command of a recognized political authority

-positivists see legal validity + moral validity as separate ?s 

-enforce law as written, not by moral views  

natural law

-rejects positivists separation of law and morality

-morality more likely to influence law interpretation

american legal realism

-regard law in books as less important than the law in action - conduct of those enforcing the law

-behavior of public officials (mainly judges) as they deal with matters before the lgal system

social jurisprudence

law is a process of social ordering reflecting society’s dominant interests & values

functions of law 

1) peacekeeping

2) checking govt power & promoting personal freedom 

3) facilitating planning & realization of reasonable expectations 

4) promoting economic growth through free competition 

5) promoting social justice 

6) protecting the environment 

statutory interpretation

-some legislation uses ambiguous language to avoid writing for each situation

-courts/agencies expected to fill in details

-grammas can affect meaning

plain meaning

court to apply the statute according to the usual meaning of its words without concerning itself with anything else

legislative history 

used when plain meaning differs from legislative history’s results or when language is ambiguous 

-determines what the legislature thought about the specific meaning of statutory language

-determines overall aim, end, or goal of the legislation

legislative purpose

intended goal or objective that the legislature aims to achieve with the statute

general public purposes

widely accepted general notions of public policy

prior interpretations 

how courts and other legal bodies have previously interpretated and applied the statute in past cases  

maxims

general rules of thumb employed in statutory interpretations - serve as guidelines for interpretation and application 

doctrine of standing to sue 

requires that a plaintiff have some direct, tangible, and substantial stake in the outcome of the litigation 

declaratory judgment

allows parties to determine their rights and duties even though their controversy has not advanced to the point where harm has occurred and legal relief may be necessary