USINESS AW

TEXT AND CASES

Fourteenth Edition

CLARKSON MILLER CROSS  

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  Laws and regulations affect virtually all
business activities.
 Knowledge of “black-letter” law and
what conduct leads to liability not
enough - business now assumes an
ethical dimension.
 Many different laws may affect a single
business transaction. 
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 legally biding agreement

sự phát triển bền vững tài sản trí tuệ

phải thể hiện dưới 1 hình thức
vật chất (physical như MV ca
nhạc, bài thơ,..)

trách nhiệm về sản

phẩm (của ng bán)

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 Luật sơ cấp

 Primary sources of law are those that

establish the law such as constitutions,
statutes, and regulations.
= law = code constitution: thể chế
Constitution: Hiến pháp

 Secondary sources of law summarize

Luật thứ cấp

and clarify the primary sources of law.

lm rõ

ở VN: Primary source gọi là Law, gồm: Law, constitution, code

Secondary source gọi là sub-law (gồm decree, thông tư circular) document

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  Constitutional Law.
 Statutory Law.

 Ordinances.
 Uniform Laws (NCCUSL).
 Uniform Commercial Code.

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 Luật Hành chính, hệ thống luật

 Administrative Law. ở VN chỉ có Central (chính quyền TW) và local gov (chính
quyền địa phương)

 Federal Agencies.
 State and Local Agencies.
 Case Law and Common Law Doctrines. học thuyết, lý thuyết
Án lệ: những bản án có trc

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  American law is based largely on English
common law, which was a body of
general rules that applied throughout
the entire English realm.
các vùng, thuộc địa

common law system: hệ thống thông luật:

-> source of law: có case law
Civil law system: một số nước châu âu và các nước châu Á
-> Source of law: k có case law, chỉ dựa vào code, statue
Islamic law: các nước đạo hồi
-> Source of law: dựa theo các cuốn kinh

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  With English common law, there were
two separate court systems:
 Courts of law granted limited kinds of
(monetary) remedies such as land, items of
bồi thường

value, and money.

công bình, công bằng
 Courts of equity awarded non-monetary
relief (remedies in equity) such as specific
performance, injunctions, and rescissions.

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© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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  Though the courts of law and equity have
merged in the most of the U.S., they still
recognize legal remedies and equitable
remedies.
 A party can request both legal and
equitable remedies in the same action,
and the trial court judge may grant either
or both forms of relief.
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© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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  Stare Decisis (“stand on decided cases”) is
a common law doctrine under which
Thẩm phán khi xét xử phải follow các án lệ tương tự đã có trc mà các tòa lớn xử rồi thì tòa nhỏ phải tuân theo
judges must follow the precedents
established in prior decisions.
 It helps the courts be more efficient and
makes the law more stable and predictable.
ổn định và có thể dự đoán trc đc

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  Stare decisis has two aspects:
 A court should not overturn its own
precedents unless there is a compelling
lý do thuyết phục

reason to do so.
 Decisions made by a higher court are
binding on lower courts.
tòa cấp dưới phải follow tòa cấp trên

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  Binding Authority: Any source of law a
court must follow when deciding a case.
 Includes constitutions, statutes, and
regulations.
 Controlling precedent: A binding authority
that requires a court to follow prior court
decisions in its jurisdiction.

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  Persuasive Authority: Any primary or
secondary source of law that a court may
consult for guidance but that is not
binding on the court.
 Sources include precedents from other
jurisdictions; issues of fairness, social values,
and customs; and unpublished opinions.

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  Pervasive authority is used in cases of first
impression, or those that have no
precedent.
 A prior judicial decision is a binding precedent
only when the subsequent court is applying
the same law as the prior court.

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  The highest court in a jurisdiction can
depart from precedent if it decides that:
 The precedent is incorrect, or
 The technological or social changes have
rendered the precedent inapplicable.

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  IRAC Method: The legal reasoning
process that is used to decide cases
regardless of length and complexity.
 IRAC is an acronym for Issue, Rule,
Application, and Conclusion.
should use IRAC method in final exam and presentation

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  1. Issue—What are the key facts and issues?
 2. Rule—What rule of law applies to the
case?
most important

 3. Application—How does the rule of law

apply to the particular facts and
circumstances of this case?
 4. Conclusion—What conclusion should be
drawn?

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  There is no one “right” answer to most
legal questions.
 Good arguments can be made to support
either side of the controversy.
thẩm phán
 Judges have personal beliefs that can affect
decisions.
 Outcomes to lawsuits cannot be predicted
with certainty.
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  Common law governs transactions not
covered by statutory law.
 Courts interpret statutes and regulations.
 Judges interpret and apply the law but do
not make laws.

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  Restatements of the Law: Compilations
that generally summarize the common
law rules followed by most states.
 The American Law Institute (ALI) publishes
the Restatements.
 Restatements cover the areas of contracts,
torts, agency, trusts, property, restitution,
security, judgments, and conflict of laws.
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  The Restatements are secondary
sources of law and are an important
source of legal analysis and opinion.
 Many Restatements are now in their
second, third, or fourth editions.

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  Natural Law School
 Positivist School

 Historical School

 Legal Realism

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  Assumes a higher, or universal, law
exists that applies to all human beings
and that written laws should reflect the
principles inherent in natural law.

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  States that there is no law higher than
the laws created by a national
government.
 Laws must be obeyed to prevent
anarchy even if they are unjust.
 Legal positivism is the basis for
positive—or national—law.

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  Emphasizes the evolutionary process of
law.
 Concentrates on the history and origins
of the legal system.
 Law derives its legitimacy and authority
from standards that have withstood the
test of time.

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  Based on the idea that law is shaped by
social forces and needs.
 Judges must account for economic and
social realities when deciding cases.
 Legal Realism influenced the growth of
the Sociological School, which views law
as a tool to promote social justice.

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  Every type of law will be either:
 Substantive or Procedural.
luật về quyền và nghĩa vụ của các bên cụ thể

 Civil or Criminal.

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  Substantive law consists of all laws that
define, describe, regulate, and create
legal rights and obligations.
 Procedural law consists of all laws that
that outline the methods of enforcing
the rights established by substantive
law.

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  Civil law spells out the rights and duties
that exist between persons and
between persons and their
governments, as well as the relief
available when a person’s rights are
violated.

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 luật hình sự

 Criminal law is concerned with wrongs

committed against the public as a
whole.
 Criminal acts are defined and prohibited by
local, state, or federal government
statutes.

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  Refers to all laws governing electronic
communications and transactions—
particularly those conducted via the
internet.
 Applies to just about all legal issues,
including copyright, contracts, banking,
etc.

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  Citation: A reference to a publication in
which a legal authority can be found.
Quốc Hội khác Parliament

 Uncodified statutes passed by Congress

are reported in United States Statutes at
Large. Uncodified state statutes are
collected in similar state publications.

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  Most laws are referenced by their
codified form—or the form in which they
appear in the federal and state codes—
and are compiled by subject.
 Codified statutes passed by Congress are
reported in the United States Code.

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  Codified statutes passed by a state
legislature are typically reported by
subject in that state’s code.

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  Rules and regulations from federal
administrative agencies appear first in
the Federal Register (published daily).
These are eventually incorporated into
the Code of Federal Regulations (C.F.R.).

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  Two types of courts in the U.S.: federal
courts and state courts.
 Trial courts are those in which evidence
is presented and testimony is given.
 Trial court decisions can be appealed to
a higher court, typically an appellate
court (intermediate court of appeals).

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  Appellate court decisions may be
appealed to an even higher court, such
as a state supreme court or the U.S.
Supreme Court.

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  State trial court decisions are typically
filed in the office of the clerk of the
court and are available for public
inspection.
 Written decisions of the appellate
courts are available in print and online.

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  The official reported appellate decisions
are published in volumes called reports
or reporters that are published by each
state.
 Unofficial reports are published by
nongovernment entities.

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  Regional Reporters: State court
opinions appear in regional units of the
West’s National Reporter System.
 Many states use the National Reporter
System instead of their own state reporters
because it reports cases more quickly and
distributes them more widely.

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  Federal district (trial) court decisions are
published unofficially in the Federal
Supplement (“F. Supp.” or “F. Supp. 2d”).
 Opinions from the circuit courts of
appeals are reported unofficially in the
Federal Reporter (F., F.2d, or F.3d).

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  The Bankruptcy Reporter (“Bankr” or
“B.R.”) reports bankruptcy decisions
from all federal courts.
 All opinions of the U.S. Supreme Court
are published in United States Reports
(“U.S.”) by the federal government.

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  Unofficial reports of Supreme Court
decisions can be found in the Supreme
Court Reporter (“S. Ct.”) and the United
States Reports: Lawyers Edition (“L. Ed.”
& “L. Ed. 2d”).

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  Many court opinions that are not yet
published or intended for publication
are accessible through Thomson
Reuters Westlaw®.
 Federal appellate court decisions that
are designated as unpublished may
appear in the Federal Appendix (Fed.
Appx.) of the National Reporter System.
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 Legal cases are identified by a “legal
citation” (or a “cite”) as the sample below:
Rosa and Raymond Parks Institute for Self
Development v. Target Corporation,
812 F.3d 824 (2016).
Nguyên đơn (ng đi kiện) bị đơn
Title: First Party is Plaintiff, second party is Defendant. The
parties are either italicized or underlined.

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 Legal cases are identified by a “legal
citation” (or a “cite”) as the sample below:
Rosa and Raymond Parks Institute for Self
Development v. Target Corporation,
812 F.3d 824 (2016).

This is a federal court case in 2016. It is published in volume 812

of the Federal Reporter Third Series beginning on page 824.

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  Plaintiff/Petitioner: The party who initiates a
lawsuit.
 Defendant/Respondent: The party against whom
the lawsuit is brought.
Ng kháng cáo tòa xử r nma mình k chịu nên mình kháng cáo lên tòa cao hơn
 Appellant/Petitioner: The party who takes an
appeal from one court to another.
Appellee/Respondent: The party against whom an
ng bị kháng cáo

appeal is taken.
damage khác damages
 Damages: A monetary award sought as a remedy
for a breach of contract or a tortious act.
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 thời hạn
 Statute of limitations: A federal or state statute
setting the maximum time period during which a
certain action can be brought or certain rights
enforced.
 Judge/Justice: The terms judge and justice are
usually synonymous and represent two
designations given to judges in various courts.

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  Opinion: The court’s reasons for its decision, the
rules of law that apply, and the judgment.
quan điểm nhất trí
 Unanimous Opinion: An opinion that represents
the view of all the judges who heard a case.
 Majority Opinion: A court opinion that represents
the views of the majority (more than half) of the
judges or justices deciding the case.

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  Concurring Opinion: A court opinion by one or
more judges who agree with the majority opinion
but not the legal reasoning behind the opinion.
 Dissenting Opinion: An opinion by one or more
judges who disagree with the majority’s opinion.
 Plurality Opinion: An opinion that has the support
of the largest number of judges, but less than a
majority of them.
 Per Curiam Opinion: A unanimous opinion that
does not indicate which judge wrote it.
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