CHAPTER TWOCHAPTER TWO

SOURCES OF THE LAWSOURCES OF THE LAW

MUSOLINO SUNY CRIMINAL & BUSINESS LAW

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Learning Objectives

1. Enumerate the objectives of the law.2. Clarify the operation of the law as a

complex adaptive system.3. Outline the content of the U.S.

Constitution.4. Explain the role of statutory law in the

legal system.5. Distinguish between the principle of

preemption and the doctrine of devolution.

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Learning Objectives

6. Defend the need to set up a system of uniform state laws.

7. State the role of common law in the legal system.

8. Describe how the principle of stare decisis provides stability to our legal system.

9. Differentiate between statutory interpretation and judicial review.

10.Account for the legislature’s need to establish administrative agencies.

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The Law as a Balancing Act

• One person’s rights are enforced while another’s are not

• Because the law is made by people, it is not perfect

• Legislators and judges bring their own personal prejudices and biases into the process

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Question?

What is a network of interacting conditions that reinforce one another?

A. Closed systemB. Complex adaptive systemC. Simple adaptive systemD. Open system

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The Law as a Complex Adaptive System

• Complex adaptive system – a network of interacting conditions that

reinforce one another while at the same time adjusting to changes from agents both outside and inside the system.

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Attributes of Complex Adaptive Systems

1. Operates as the result of the interaction of a variety of actors within the system itself

2. There is no central controlling actor3. Multiple levels of organization exist

within the network4. The more experienced a complex

adaptive system becomes, the more change it undergoes

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Attributes of Complex Adaptive Systems

5. As a part of this process, a complex adaptive system can infer the direction of future events and often adjust to those changing events

6. Within each complex adaptive system, certain levels of influence, called embedded niches, exist, which permit individuals inhabiting those niches to exercise a certain degree of limited power

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Constitutional Law

• Constitution – basic law of a nation or state

• Constitutional law – body of law that makes up a constitution

and its interpretation

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Constitutional Law

• Articles of Confederation – created to hold together a fragile coalition

of states, each of which was determined to maintain its own independent existence

– primary weakness was that Confederation Congress could not impose taxes or tariffs

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Principles of the U.S. Constitution

• Separation of national powers among three distinct branches of government

• System of checks and balances that allows each branch to oversee the operation of the other two branches

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Question?

What part of the Constitution changes provisions in the original articles?

A. Bill of RitesB. Change policyC. AmendmentsD. Articles

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Structure of the U.S. Constitution

• Articles – establish the organization of the national

government

• Amendments – change provisions in the original articles – add ideas that the framers did not include

in those articles

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Articles of the U.S. Constitution

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The Question of Democracy

• Structure of the Constitution establishes a republic

• The difference between a democracy and a republic is that in a democracy, the people have direct control over the government, whereas in a republic, the people elect delegates to represent them.

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State Constitutions

• Each state in the union adopts its own constitution

• A state constitution establishes the state’s government

• It sets down principles to guide the state government in making state laws and conducting state business

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The Principle of Supremacy

• A basic principle of constitutional law is that the U.S. Constitution is the supreme law of the land

• All other laws must be in line with constitutional principles

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The Principle of Preemption

• Preemption – the process by which the courts decide that

a federal statute must take precedence over a state statute.

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The Doctrine of Devolution

• Devolution – occurs when the courts redefine a right and

shift the obligation to enforce that right from an upper level authority to a lower one

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Statutory Law

• Statutes – Laws passed by a legislature

• At the federal level, statutes are the laws made by Congress and signed by the president

• At the state level, statutes are enacted by state legislatures

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Codes and Titles

• Code– a compilation of all the statutes of a

particular state or the federal government

• Titles – groupings of statutes that deal with a

particular area of the law

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Uniform Laws

• Statutory law differs from state to state• One solution to the problem of

inconsistent statutory law is for all the state legislatures to adopt the same statutes

• The National Conference of Commissioners on Uniform State Laws (NCCUSL) was founded to write these uniform laws

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Question?

Which unified set of statutes is designed to govern almost all commercial transactions?

A. Uniform Business Code B. Commercial Code of Regulations C. Uniform Commercial Code D. Unified Business Regulations

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The Uniform Commercial Code

• Uniform Commercial Code (UCC) – a unified set of statutes designed to govern

almost all commercial transactions– helps parties involved in commercial

transactions prepare their contracts

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Electronic Law Statutes

• E-commerce – term applied to all electronic transactions

• The advent of the Information Age has sparked the need for specific electronic law statutes that address the problems associated with e-commerce

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Court Decisions

• Common law• Interpretation of statutes• Judicial review

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Common Law

• Common law – the body of previously recorded legal

decisions made by the courts in specific cases.

• Stare decisis (let the decision stand) – process of relying on these previously

recorded legal decisions

• Precedents – The previously recorded legal decisions

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Question?

Which precedent is a court free to follow or ignore?

A. Persuasive precedent B. Binding precedentC. Required precedentD. Credible precedent

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Common Law

• Binding precedent – precedent that a court must follow.

• Persuasive precedent – precedent that a court is free to follow or

ignore.

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Statutory Interpretation

• Statutory interpretation – the process by which the courts analyze

those aspects of a statute that are unclear or ambiguous or that were not anticipated at the time the legislature passed the statute

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Question?

What is the process of determining the constitutionality of various legislative statutes, administrative regulations, or executive actions?

A. Official reviewB. Legal reviewC. Judicial assessmentD. Judicial review

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Judicial Review

• Judicial review – the process of determining the

constitutionality of various legislative statutes, administrative regulations, or executive actions

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Administrative Agencies

• Administrative agencies – create rules, regulate and supervise, and

render decisions that have the force of law

• Administrative law – agencies’ decrees and decisions

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Question?

What publication produces a daily compilation of new regulations issued by federal agencies?

A. Federal RegisterB. Washington PostC. Federal PostD. Register of Federal Rules and

Regulations

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The Federal Register and the Code

of Federal Regulations• Federal Register

– a publication that produces a daily compilation of new regulations issued by federal administrative agencies