Chapter 1 Flashcards
what is the foundation of legal practice in the private market system?
Property based legal system
Purpose of law, the rule of law, and property
sets the maximum conditions for generation of “wealth of nations”
3 reasons for why property creates wealth of nations
incentivizes people/businesses to invest - “risk improvement”
- property identifies and protects set of tangible and intangible resources that transferred in marketplace
- property provides necessary incentive for owners to risk improvement to resources by ensuring they will benefit from such improvement- others cannot deprive them of such benefit - owners can protect property
- property creates security for capital borrowing and investment
what is the key to a nations economic strength
existence of rule of law and supporting legal system
must be adequalty enforced and equally applied
fair and enforceable
proper definition of law
rule based, state enforced formal ordering system with moral elements
made up of rules, laid down by state, backed up by enforcement
purpose of enforcement
promotes certainty and trust necessary for long term business transactions and dealings
need certainty to invest in resources
generally vs equally applicable
laws are made generally and equally applicable
generally - apply to various groups in the same way
equally - apply to all or most members of society
property means ______
ownership
what makes for successful private markets
law that protects property
right of private property
what is the right of property
Legal right to exclude or keep others from interfering with your property
legal fence around resources preventing unwanted interference from others seeking to make use of our resources
secret to economic prosperity and wealth of nation
lies within the foundation of property law and legal system to implement it under the rule of law, rather than in a specific business subject
jurisprudence
legal philosophy helps us understand origin of laws in our nation
5 types of jurisprudence
natural law
positive law
historical school of legal philosophy
sociological
legal realism
4 classifications of law
civil law - common law
public law - private law
civil law - criminal law
substantive law - procedural law
2 major legal systems
civil law vs common law
civil law (civil vs common)
statutory treatment of law, where laws are based on codification
court systems are a fact-finding body - “did Joe run the stop sign”
court system becomes a fact-finding body
where does civil law exist
Europe, france, former colonies
common law (civil vs common)
Law based on written judicial decisions that establish precedent
Judge-made law, emphasizes importance of judiciary branch, and impartiality of judges
Look at facts, combine facts with law, creates precedent
U.S. uses, except for Louisiana - uses combo
public law
regulates society in general (public)
constitutional law. administrative law, criminal law
defines poweer and authority of government
private law
regulates private resource ownership
property law, contract law, tort law
tort law
slip and fall, car accident, btn two individual
Preponderance of evidence
criminal law
someone arrested, state vs John Doe, state will always sue on behalf of citizens to protect us from bad behavior and deter John Doe from engaging in this behavior again
Taking away liberties and freedoms
Much higher burden of proof - beyond reasonable doubt
civil law (civil vs criminal)
dealing with private rights between people
Torts and contracts, damages, no punishment (no jail time)
Negligent conduct - tort
criminal law (civil vs criminal)
wrong of society, offense of society against large (DUI)
“State vs Smith” prosecuted by government
Can result in punishment, behind bars
substantive law
part of law creating, defining, regulating rights, duties, and powers
The What
procedural law
addresses how, means of having legal force
The How
Methods and means of how these laws are enforced
4 Different sources of law - Hierarchy
U.S. constitution
Federal legislation
Federal administrative regulation
State constitutions
State legislation
State administrative legislation
Local ordinances
Case law
constitutions
Set forth fundamental rights of the people in the U.S. - Supreme law of the land
Will always trump state constitutions
federal - state - local
Legislations
Enacted by congress or legislature of any state
Write laws clearly without much room for interpretation, then it becomes a judicial case if too much grey area
Administrative legislation
Rule or order by federal state or local regulatory agencies
EPA, Consumer Product Safety Commission
Allows gov to work more effectively → bodies with expertise
judicial decisions or case law
Opinions - reasons - judges interpretation
Court can render opinions due to precedent
Precedents can become own source of law
stare decisis
courts decision on the same issue with same jurisdiction is to be followed by same courts in that same jurisdiction
advantages of case law
prior decision stands
Judges follow precedents, gives certainty and predictability
disadvantages of case law
Volume of cases, conflicting precedents, conflicts of law
legal sanctions
encourage/enforce compliance
Punishment and prevention
People follow laws because of consequences and enforcement
breach of contract
attempt to make people whole
Failure to meet promises made under agreement, enforcement focused on remedies
Remedies to breach of contract
damages (money)
- compensatory
- consequential
Rescission
Specific performance
tortious conduct
making injured party whole
seeks to compensate for loss - monetary
corporate governance
Protects property interest that an owner in the company has in the corporation
Corporation = legal person
Ownership = shareholders
rules that protect owners property interest
