Bus Law Today Ch. 1 Terms & Review 10Th Ed. Miller

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Law

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A body of enforceable rules governing relationships among individuals and between individuals and their society. In the United States our rules consist of written laws and court decisions created by modern legislative and judicial bodies. Regardless of how such rules are created, they all have one feature in common: they establish rights, duties, and privileges tha are consistent with the values and beliefs of a society or its ruling group.

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Primary Source of Law

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Primary sources of law, or sources that establish the law, include the following:
- The U.S. Constitution and the constitutions of the various states.
- Statutes, or laws, passed by Congress and by state legislatures.
- Regulations created by administrative agencies, such as the federal Food and Drug Administration.
- Case law (court decisions)

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Secondary Source of Law

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Secondary sources of law are books and articles that summarize and clarify the primary sources of law. A publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review.

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Constitutional Law

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The body of law derived from the U.S. Constitution and the constitutions of the various states.

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Citation

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A reference to a publication in which a legal authority - such as a statute or a court decision- or other source can be found.

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Ordinance

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A regulation enacted by a city or county legislative body that becomes part of that state's statutory law. (Statutes (laws, rules, or orders) passed by municipal or county governing units to administer matters not covered by federal or state law.) Ordinances commonly have to do with city or county land use (zoning ordinances), building and safety codes, and other matters affecting only the local governing unit.

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Statute Jurisdiction

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- A Federal Statute: applies to all states.
- A State Statute: applies only within the state's borders (thus, state laws may vary from state to state).
- No federal statute may violate the U.S. Constitution.
- No state statute or local ordinance may violate the U.S. Constitution or the relevant state constitution.

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Uniform Law

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A model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute. Each state has the option of adopting or rejecting a uniform law. Only if a state legislature adopts a uniform law does that law become part of the statutory law of that state. A state legislature may choose to adopt only part of a uniform law or to rewrite the sections that are adopted.

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Administrative Law

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The body of law created by administrative agencies in order to carry out their duties and responsibilities; consists of the rules, orders, and decisions of administrative agencies.

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Administrative Agency

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A federal, state, or local government agency created by the legislature to perform a specific function, such as to make and enforce rules pertaining to the environment.

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Enabling Legislation

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A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.

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Adjudicate

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To render a judicial decision. Adjudication is the trial-like proceeding in which an administrative law judge hears and resolves disputes involving an administrative agency's regulations.

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Administrative Process

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the procedure used by administrative agencies in administering the law.

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Rulemaking

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The process by which an administrative agency formally adopts a new regulations or amends an old one.

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Legislative Rule

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An administrative agency's rule that carries the same weight as a congressionally enacted statute.

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Interpretive Rule

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A non-binding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statutes it enforces.

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Administrative Law Judge (ALJ)

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One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.

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Case Law

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The rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and other case law.

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Common Law

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The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature; a body of general rules that applied throughout the entire English realm.

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Precedent

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A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.

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Stare Decisis

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Stare decisis ("to stand on decided cases") A common law doctrine under which judges are obligated to follow the precedents established in prior decisions. The practice of deciding new cases with reference to former decisions, or precedents eventually became a cornerstone of the English and U.S. Judicial systems.

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Binding Authority

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Any source of law that a court must follow when deciding a case.

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Persuasive Authority

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Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision.

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Remedy

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The relief given to an innocent party to enforce a right or compensate for the violation of a right.

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Plaintiff

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One who initiates a lawsuit.

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Defendant

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One against whom a lawsuit is brought, or the accused person in a criminal proceeding.

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Substantive Law

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Law that defines, describes, regulates, and creates legal rights and obligations.

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Procedural Law

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Law that establishes the methods of enforcing the rights established by substantive law.

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Cyberlaw

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An informal term used to refer to all laws governing electronic communications and truncations, particularly those conducted via the Internet.

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Civil Law

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The branch of the law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters. Spells out the rights and duties that exist between persons and between persons and their governments, and the relief available when a person's rights are violated.

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Civil Law System

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A system of law derived from Roman law that is based on codified laws (rather than on case precedents); a legal system based on a written code of laws.

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Criminal Law

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The branch of law that defines and punishes wrongful actions committed against the public. Criminal acts are proscribed by local, state, or federal statues; defendants are prosecuted by public officials, such as a district attorney (D.A.), on behalf of the state, not by their victims or other private parties.

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National Law

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Law that pertains to a particular nation such as the United States or Sweden (as opposed to international law). Government authorities can enforce national law.

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International Law

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The law that governs relations among nations. A body of written and unwritten laws observed by independent nations and governing the acts of individuals as well as governments. If a nation violates an international law, enforcement is up to other countries or international organizations, which may or may not choose to act.

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Federal Form of Government

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A system of government in which the states for a union and the sovereign power is divided between the central government and the member states.

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Checks and Balances

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The principle under which the powers of the national government are divided among three separate branches - the executive, legislative, and judicial branches - each of which exercises a check on the actions of the others.

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Commerce Clause

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The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce.

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Police Powers

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Powers possessed by the states to protect or promote the public order, health, safety, morals, and general welfare.

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Supremacy Clause

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The requirement in Article VI of the U.S. Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land."

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Preemption

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A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

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Bill of Rights

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The first ten amendments to the U.S. Constitution.

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Symbolic Speech

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Nonverbal expressions of beliefs. Symbolic speech, which includes gestures, movements, and articles of clothing, is given substantial protection by the courts.

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Compelling Government Interest

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A test of constitutionality that requires the government to have convincing reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait.

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Filtering Software

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A computer program that is designed to block access to certain Web sites, based on their content. The software blocks the retrieval of a site whose URL or key words are on a list within the program.

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Meta Tag

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A key word in a document that can serve as an index reference to the document. On the Web, search engines return results based, in part, on the tags in Web documents.

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Establishment Clause

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The provision in the First Amendment that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another.

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Free Exercise Clause

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The provision in the First Amendment that prohibits the government from interfering with people's religious practices or forms of worship.

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Equal Protection Clause

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The provision in the Fourteenth Amendment that requires state governments to treat similarly situated individuals in a similar manner.

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What are four primary sources of law in the United States?

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Primary sources of law are sources that establish the law. In the United States, these include the U.S. Constitution and the state constitutions, statues passed by Congress and the state legislatures, regulations created by adminis­trative agen­cies, and court decisions, or case law.

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What is a precedent? When might a court depart from precedent?

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Judges attempt to be consistent, and when possible, they base their decisions on the principles suggested by earlier cases. They seek to decide similar cases in a similar way and consider new cases with care, because they know that their con­flicting decisions make new law. Each interpretation becomes part of the law on the subject and serves as a legal precedent—a decision that fur­nishes an example or authority for deciding subsequent cases involving simi­lar legal principles or facts. A court will depart from the rule of a precedent when it decides that the rule should no longer be followed. If a court decides that a precedent is simply incor­rect or that technological or social changes have rendered the precedent inappli­cable, the court might rule contrary to the precedent.

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What is the difference between remedies at law and remedies in equity?

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An award of compensation in either money or property, including land, is a rem­edy at law. Remedies in equity include the following:

1. A decree for specific performance (an order to perform what was promised).
2. An injunction (an order directing a party to do or refrain from doing a particular act).
3. A rescission (cancellation) of a con­tract (and a return of the parties to the positions that they held before the contract’s formation).
As a rule, courts will grant an equitable remedy only when the remedy at law (monetary damages) is inade­quate. Remedies in equity on the whole are more flexible than remedies at law.

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What constitutional clause gives the federal government the power to regulate commercial activities among the various states?

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To prevent states from establishing laws and regulations that would interfere with trade and commerce among the states, the Constitution expressly dele­gated to the national government the power to regulate interstate commerce. The com­merce clause—Article I, Section 8, of the U.S. Constitution—expressly permits Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

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What is the Bill of Rights? What freedoms do the First Amendment guarantee?

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The Bill of Rights consists of the first ten amendments to the U.S. Constitution. Adopted in 1791, the Bill of Rights embodies protections for individuals against interference by the federal government. Some of the protections also apply to business entities. The First Amendment guarantees the freedoms of religion, speech, and the press, and the rights to assemble peaceably and to petition the government.