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bb.outline.nature&sources_1

bb.outline.nature&sources_1 - Nature Sources of Law...

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Nature & Sources of Law Corresponding Reading Assignment: Text: pages 10 – top of 16; Bottom of 17 – 22; Pages 92 – 104; middle of 106 – 108; 112 - 113 Supplemental Documents on Blackboard: - Provisions from the 2d Restatement of Torts 1. What is the Law? a. General Purpose: The ensuring of orderliness to all human activity b. Primary Sources: Contain legally binding rules and procedures, include federal and state constitutions, statutes, administrative agency regulations, court decisions i. Binding sources that establish the law c. Secondary Sources: summarize and explain the law, and sometimes criticize and suggest changes in it. i. Not legally binding, but are frequently referred to and used by courts as aids in determining what the law is or should be ii. Summarize and clarify the law iii. Are they binding? Not legally iv. Use: guidance and interpreting of the law v. Ex: 1. Textbook 2. Law review article 3. Cases from outside legislation (sources) 4. Encyclopedia 5. Treatise - paper someon writes about some portion of law 2. Rule and Processes a. Rule-Oriented approach: i. Views the law as consisting of the rules that are in effect within a state or nation at a given time ii. “Law is the body of principles, standards and rules which the courts . . . apply in the decision of controversies brought before them.” iii. The law is only those rules that are in effect at the time an issue arises b. Process-oriented approach: i. Sees the law in a broader light: The processes by which the rules and principles are formulated constitute the major element of law. ii. “Law is a dynamic process, a system of regularized, institutionalized procedures for the orderly decision of social questions, including the settlement of disputes.” iii. Law is a dynamic process and must consider the process behind laws to establish what the law actually is 3. Requisites of Legal System:
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a. For a legal system to function properly it must command the respect of the great majority of people governed by it. b. Must be: i. Relatively certain- something clear 1. The courts are generally reluctant to overturn principles that have been part of the law for any appreciable length of time. 2. Not to say that law is static ii. Relatively flexible iii. Known or knowable- accessible iv. Apparently reasonable 4. Classifications of Law a. **Laws are always organized by topics b. Subject matter to which it relates: i. Two observations can be made: 1. The subjects of agency, contracts, and torts are essentially common law in nature, whereas the subjects of corporation law, criminal law, sales, and taxation are governed by statute. Most of the remaining subjects are mixed in nature 2. Several of these subjects have a much closer relationship to the world of business than the others c. Federal and State Law i. The basis of the governmental unit from which it arises ii. Federal: written by federal governmetn, applies to all states iii. State: written by state government, applies only to state d. Common Law (Case law) v. Statutory Law i. Common law
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