110 likes | 242 Views
Commercial Law (Mgmt 348) Course Introduction/The Legal Environment of Business (Chapter 1) Professor Charles H. Smith Spring 2011. Introduction. Introduce myself/course. Take roll/adds. Review course syllabus. My e-mail (best way to contact me) – chsmith@fullerton.edu .
E N D
Commercial Law (Mgmt 348) Course Introduction/The Legal Environment of Business (Chapter 1) Professor Charles H. Smith Spring 2011
Introduction • Introduce myself/course. • Take roll/adds. • Review course syllabus. • My e-mail (best way to contact me) – chsmith@fullerton.edu. • My website – http://faculty.fullerton.edu/chsmith. • Warning/disclaimer • Any legal topic can feature matter which is illegal, unethical or both. • Cases and examples will be presented for purpose of education, not for “shock” value.
Legal Research and Writing • One of the course requirements will be a paper which will feature (among other things) legal research and writing. • Best legal research website is LexisNexis Academic which can be found on the CSUF website • Start on www.fullerton.edu homepage. • Click on Library link (left side of page). • Under Quick Links, click on Find Databases link (left side of page). • Click on L (top of page). • Click on LexisNexis Academic link. • Input and enter your username and password. • Click on US Legal link (left side of page) and list of sources of legal authorities will appear.
Legal Research and Writing cont. • Search tips • Case citation – format is volume number, then abbreviation of publication, then first page of case; e.g., 3 Cal.4th 1 stands for the case found in volume 3 of the California Reports (4th series), starting on page 1. • Key words – start with broad terms and recent publications (e.g., “arbitration” within the last 6 months), then use more specific terms (e.g., “arbitration” and “wrongful termination”) and search for older publications if necessary. • Organize your written presentation through use of headings, new paragraphs, proper grammar/punctuation/spelling, and the following format – introduction/body of text/conclusion.
Constitutions • The United States Constitution is the “supreme law of the land” so all other laws (such as statutes) must be consistent with it. • Everyone in the USA is subject to two constitutions – U.S. plus the state in which person/business is located. • Constitutions often use very general or even vague language so open to interpretation. • Student examples.
Statutes • Statutes are laws created by legislatures • Federal – Congress. • State – California state legislature. • Local – OC Board of Supervisors, City Council. • Interpretation of statutes usually based on “plain meaning” of language used but can also be based on judicial interpretation of same or similar language found in another statute. • Student examples.
Case or Common Law • American legal system is often called a “common law” system. • Most of the citations (references) to rules of law by judges, lawyers, professors, students, etc. is done by referring to cases. • Student examples.
Case or Common Law cont. • A case is ordinarily made up of • Description of the facts. • Statement of the issue(s) – case may involve just one or perhaps many issues. • Court’s ruling(s) (or “holding(s)”) as to those issues. • Court’s reasoning as to its rulings/holding(s).
The Rule of Stare Decisis • Stare decisis is a Latin phrase which means “to stand on decided cases.” • In practice, this requires courts to apply previously-decided cases (“precedent”) from same jurisdiction to current legal disputes featuring same or similar law and/or facts. • In other words, the court does not have the discretion to contradict precedent. • Student examples.
Stare Decisiscont. • Mandatory authority – precedent based on same law • Should conclusively decide the issue. • Example – dispute in which the plaintiff is seeking a preliminary injunction requires the plaintiff to show probability of prevailing on the merits (rule stated in many cases). • Persuasive authority – precedent based on similar law • May be helpful in deciding the issue. • Example – issue was statutory deadline to perform an act of 30 days before “the trial date”; some other unrelated statutes (and cases interpreting those statutes) refer to deadline of 30 days before “the initial trial date”; we argued that lack of the word “initial” meant the statutory deadline to perform was extended every time the “trial date” to continued into the future.
Stare Decisiscont. • What to do if no mandatory authority which would conclusively decide the issue? • First, try persuasive authority since it is the decision of a court and the court hearing the current case may be more comfortable with an analogy to a legal rule. • However, public policy, data or concepts from social or hard sciences, or equity (fairness) can all be useful; e.g., Griggs v. Duke Power Co.