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BUS 115 Chap002 Sources of the Law


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BUS 115 Chap002 Sources of the Law

  1. 1. Chapter 2 Sources of the Law 2-1
  2. 2. The Law as a Balancing Act • The system is not perfect (human-effect) – • • Ex: One person’s rights are enforced while another’s are not Legislators and judges try to be as objective as possible Personal prejudices, biases, and other limitations still creep into the process 2-2
  3. 3. Dualities within the Law • The legal system is shaped by several dualities: – Balance between the spirit and the letter of the law – Between legal words and their interpretation – Between abstract principles and concrete situations 2-3
  4. 4. The Spirit and the Letter of the Law • A person who follows the “spirit” of the law has found its actual intent, while one who is tied to the “letter” of the law has missed its true meaning. 2-4
  5. 5. Words versus Interpretation • Because words are often ambiguous, the language of the law can become a hindrance rather than a help in the execution of the law. • It is sometimes necessary to manipulate the language in order to uncover the actual intent of the lawmakers and to apply that intent in a consistent and fair fashion 2-5
  6. 6. The Abstract and the Concrete • It is not always easy to take an abstract principle (“The gov’t should be fair and equitable”) and apply that to a concrete piece of legislation (reforming tax structure, education, etc.) 2-6
  7. 7. Constitutional Law • Constitution – basic law of a nation or state • Constitutional law – body of law that makes up a constitution and its interpretation 2-7
  8. 8. Constitutional Law • Articles of Confederation – Created to hold together a fragile coalition of states, each of which was determined to maintain its own independent existence – Much weaker federal government and stronger state governments – A primary weakness was that Confederation Congress could not impose taxes or tariffs 2-8
  9. 9. Principles of the U.S. Constitution • Separation of national powers among three distinct branches of government • System of checks and balances that allows each branch to oversee the operation of the other two branches 2-9
  10. 10. Structure of the U.S. Constitution • Articles – establish the organization of the national government • Amendments – change provisions in the original articles – add ideas that the framers did not include in those articles 2-10
  11. 11. Articles of the U.S. Constitution 2-11
  12. 12. States Rights, Democracy, and the Amendment Process • Articles of Confederation did not set up a democracy, rather the Articles expressly support state supremacy. • When the U.S. Constitution was written many of the provisions of the Articles of Confederation were lost 2-12
  13. 13. The Question of Democracy • Structure of the Constitution establishes a republic • Democracy: the people have direct control over the government • Republic: the people elect delegates to represent them. 2-13
  14. 14. State Constitutions • Each state in the union adopts its own constitution • Establishes the state’s government • Sets down principles to guide the state government in making state laws and conducting state business • NC Constitution 2-14
  15. 15. The Principle of Supremacy • The U.S. Constitution is the supreme law of the land • All other laws must be in line with constitutional principles • U.S. Constitution (Cornell) 2-15
  16. 16. Federal v. State Statutes • Preemption – the process by which the courts decide that a federal statute must take precedence over a state statute. • Devolution – occurs when the courts redefine a right and shift the obligation to enforce that right from an upper level authority to a lower one 2-16
  17. 17. Commerce Clause • The federal government’s power to regulate business has emerged over the years out of the Commerce Clause of the U.S. Constitution. • The power to regulate is so broad today that the federal government can regulate any business activity that affects interstate commerce. • Article I, Section 8, Clause 3 2-17
  18. 18. Statutory Law • Statutes – Laws passed by a legislature • At the federal level, statutes are the laws made by Congress and signed by the president • At the state level, statutes are enacted by state legislatures • U.S. Code – • NC Statutes – 2-18
  19. 19. Codes and Titles • Code – a compilation of all the statutes of a particular state or the federal government • Titles – groupings of statutes that deal with a particular area of the law 2-19
  20. 20. Uniform Laws • Statutory law differs from state to state • One solution to the problem of inconsistent statutory law is for all the state legislatures to adopt the same statutes • The National Conference of Commissioners on Uniform State Laws (NCCUSL) was founded to write these uniform laws 2-20
  21. 21. The Uniform Commercial Code • Uniform Commercial Code (UCC) – a unified set of statutes designed to govern almost all commercial transactions – helps parties involved in commercial transactions prepare their contracts • UCC - Cornell 2-21
  22. 22. Electronic Law Statutes • E-commerce (cyber-commerce) – term applied to all electronic transactions • The advent of the Information Age has sparked the need for specific electronic law statutes that address the associated problems 2-22
  23. 23. Court Decisions • Common law • Interpretation of statutes • Judicial review 2-23
  24. 24. Common Law • Common law – the body of previously recorded legal decisions made by the courts in specific cases. • Stare decisis (let the decision stand) – process of relying on these previously recorded legal decisions • Precedents – The previously recorded legal decisions 2-24
  25. 25. Common Law • Binding precedent – precedent that a court must follow. • Persuasive precedent – precedent that a court is free to follow or ignore. 2-25
  26. 26. Statutory Interpretation • Statutory interpretation – the process by which the courts analyze those aspects of a statute that are unclear or ambiguous or that were not anticipated at the time the legislature passed the statute 2-26
  27. 27. Judicial Review • Judicial review – the process of determining the constitutionality of various legislative statutes, administrative regulations, or executive actions 2-27
  28. 28. Administrative Agencies • Administrative agencies – create rules, regulate and supervise, and render decisions that have the force of law • Administrative law – agencies’ decrees and decisions U.S. Agencies list 2-28
  29. 29. The Federal Register and the Code of Federal Regulations • Federal Register – a publication that produces a daily compilation of new regulations issued by federal administrative agencies 2-29
  30. 30. Question? What is the process of determining the constitutionality of various legislative statutes, administrative regulations, or executive actions? A. Official review B. Legal review C. Judicial assessment D. Judicial review 2-30
  31. 31. Question? Which unified set of statutes is designed to govern almost all commercial transactions? A. Uniform Business Code B. Commercial Code of Regulations C. Uniform Commercial Code D. Unified Business Regulations 2-31
  32. 32. Question? What publication produces a daily compilation of new regulations issued by federal agencies? A. Federal Register B. Washington Post C. Federal Post D. Register of Federal Rules and Regulations 2-32
  33. 33. Question? What is a network of interacting conditions that reinforce one another? A. Closed system B. Complex adaptive system C. Simple adaptive system D. Open system 2-33
  34. 34. Question? What part of the Constitution changes provisions in the original articles? A. Bill of Rites B. Change policy C. Amendments D. Articles 2-34
  35. 35. Question? Which precedent is a court free to follow or ignore? A. Persuasive precedent B. Binding precedent C. Required precedent D. Credible precedent 2-35