Instructor Erlan Bakiev, Ph. D.

Chapter 1 Legal Heritage and the Digital Age

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. What is Law? What is Law? It is a set of principles, rules and standards of conduct: That have general application to the society That have been developed by an authority for that society For the violation of which the society imposes a penalty 1-2 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. What is Law? The law consists of rules that regulate conduct of individuals, businesses, and other organizations within society It is intended to protect persons and their property from unwanted interference from others The law forbids persons from engaging in certain undesirable activities 1-2 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Definition of Law That which must be obeyed and followed by citizens, subject to sanctions or legal consequences A body of rules of action or conduct prescribed by controlling authority and having binding legal force 1-3 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Functions of the Law Keeping the peace Shaping moral standards Promoting social justice Maintaining the status quo Facilitating orderly change Facilitating planning Providing a basis for compromise Maximizing individual freedom 1-4 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Qualities of the Law Fairness The legal system is comprehensive, fair, and democratic Flexibility The law evolves and changes along with the norms of society, technology, the growth and expansion of commerce in the country and the world 1-5 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Schools of Jurisprudential Thought Natural Law School Law is based on what is “correct” Law should be based on morality and ethics It is the theory or belief that certain rights exist independently of any government's granting of those rights. Generally, whenever a group rebels against their government and asserts rights that the government hasn't granted them, they are making a claim of natural law. 1-6

Schools of Jurisprudential Thought Historical School Law is an aggregate of social traditions and customs Changes in the norms of society will gradually be reflected in the law The historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments. 1-6

Schools of Jurisprudential Thought Analytical School Law is shaped by logic The emphasis is on the logic of the result rather than on how the result is reached 1-7 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Schools of Jurisprudential Thought Sociological School Law is a means of achieving and advancing certain sociological goals The purpose of law is to shape social behavior Command School Law is a set of rules developed, communicated, and enforced by the ruling party The law changes when the ruling class changes 1-8

Schools of Jurisprudential Thought Critical Legal Studies School Legal rules as unnecessary Legal disputes should be circumstantially solved by applying arbitrary rules of what is deemed “fair” Law and Economics School Promoting market efficiency should be the central concern of legal decision making 1-9 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

History of American Law English system of law was adopted as a system of jurisprudence in early American colonies Acted as a foundation for American judges to develop a common law in America 1-10 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. English Common Law Developed by judges who issued their opinions when deciding cases Principles announced in these cases became precedent for later judges deciding similar cases English Common Law can be divided into cases decided by different courts 1-11 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. English Common Law Law Courts Uniform system of courts emphasizing form over substance Granted only monetary damages Courts of Chancery (equity courts) Equitable remedies shaped to fit each situation Merchant Courts Solved commercial disputes based on trade practices 1-12 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States Constitutions The Constitution is the “supreme law of the land” Establishes structure of federal government Legislative branch Executive branch Judicial branch 1-13 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States Enumerates state powers Reserves all other powers to states State have their own constitutions 1-14 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States Treaties The President, with the advice and consent of the Senate, may enter into treaties with foreign governments Treaties become part of the supreme law of land Treaties affect international business 1-15 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States State Statutes Statutes are written laws that establish certain courses of conduct that covered parties must adhere to The Parliament enacts state statutes State statutes are organized in to code books These code books constitute codified law 1-16 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States State Statutes State legislatures enact state statutes which are placed in code books or on the Internet Ordinances Law enacted by local government bodies Ordinances are codified 1-17 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States Executive orders Issued by the president and state governors Example – Prohibiting companies to sell goods and services to an enemy country during war Power derived from express delegation from legislative branch or implied from constitutional powers 1-18 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States Regulations and Orders of Administrative Agencies Empowered by legislative and executive branches of government Adopt rules and regulations Enforce statutes Hear and decide disputes Many agencies regulate business Example – SEC & FTC 1-19 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States Judicial decisions Courts issue judicial decisions Judicial decisions state the rationale used by the court in reaching that decision 1-20 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Sources of Law in the United States The rationale includes: Interpretations of statutes Ordinances Administrative regulations Announcement of legal principles 1-21 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Doctrine of Stare Decisis Based on the common law tradition, past court decisions become precedent for deciding future cases Lower courts follow the precedent established by higher courts The courts follow the precedents established by the. Supreme Court decisions Courts in one jurisdiction are not bound by precedent of another jurisdiction, but may look at it for guidance 1-22 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Priority of Law in the United States The Constitution and treaties take precedence over all other laws Federal statutes take precedence over federal regulations Valid federal law takes precedence over conflicting state or local law 1-23 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Priority of Law in the United States State constitutions rank as the highest state law State statutes take precedence over state regulations Valid state law takes precedence over local laws 1-24 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Digital Law The electronic age arrived before new laws were written that were specific for this environment Courts have applied existing laws to the new digital environment by requiring interpretations and applications Congress has enacted new federal statutes to regulate the digital environment 1-25 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 1-26 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.