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 (best way to contact me) – My website – 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 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.4 th 1 stands for the case found in volume 3 of the California Reports (4 th 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 Decisis cont. 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 Decisis cont. 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.