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Introduction to Legal Systems, Courts, Alternative Dispute Resolution, Constitutional Law

Introduction to Law and Legal Systems

Introduction:  The legal system is a complex set of rules that provide a framework of predictability and reasonable consistency and continuity for persons and businesses.  All laws have a purpose.  Generally, laws maintain order in Society, protect persons and property, provide guidelines for acceptable, mandatory and prohibited conduct, and establish parameters for handling personal affairs as well as for business transactions and operations.  Laws are dynamic and evolve to reflect changes in Societal needs, interests and demands.  The primary sources of US law include:  the US Constitution, state constitutions, state statutes, federal statutes, administrative law, treaties, and Common Law (also called case law).  US law is divided into two categories, (1) criminal law, called public law, and (2) civil law, or private law.  Criminal law governs offenses considered to be offenses against all Society in general, not just against a specific "victim"; civil law involves private disputes and offenses between individuals.   

Courts and the Legal System, Alternative Dispute Resolution

Introduction:   The US legal system is based on the old English Common Law system, and thus, the US system is often called a "common law system", meaning we derive laws from various sources such as statutes and constitutions, but also from case decisions/rulings that are referred to as "case law".  Case law is an important source of US law that is derived from court cases in which the appropriate court reviews the facts, applies and interprets the relevant law(s) to render a decision, that is, a ruling or holding.   Court decisions have the same force and effect of a law from any other source.

There is a court system for each state, plus the District of Columbia system, as well as a federal court system.  These court systems include trial level courts, intermediate appellate courts, and superior/supreme courts.  There are also specialty federal level courts such as US Bankruptcy Court, US Tax Court, Court of Federal Claims, and the Court of International Trade.   The US Supreme Court is considered the supreme “court in the land”. 

Alternative dispute resolution (ADR) provides an alternative to litigation and the court system in order to resolve civil disputes.  It is most useful for family disputes of all types, neighbor and property disputes, and some employment disputes; it is not appropriate for all types of cases.  ADR is advantageous because it can be more flexible, less costly, and less time consuming than litigation.  Types of ADR include negotiation, mediation, non-binding arbitration, and binding arbitration.

Constitutional Authority to Regulate Business

Introduction:  Article VI of the US Constitution, referred to as the “supremacy clause”, establishes the US Constitution as the supreme law of the land, and neither the US Congress nor any state may enact a law that conflicts with the US Constitution.  Constitutional authority to regulate business activities comes from several sources.  One source of authority derives from the Tenth Amendment that grants to the states so-called “police powers” to regulate private activities to protect the general health, safety, and welfare of the public.  Another source of authority comes from Article 1, Section 8, of the US Constitution that empowers the federal government to regulate interstate, and to some extent intrastate, commerce; states are prohibited from enacting laws that unduly interfere with interstate commerce and trade.  The Bill of Rights protects businesses from undue governmental interference in business activities, but also permits some restrictive regulation related to commercial speech, political speech and property searches and seizures.   (Clarkson, K., Miller, R., & Cross, F., 2012, pp. 74-85)

Reference:  Clarkson, K., Miller, R., & Cross, F. (2012), Business Law Text and Cases.   Mason, OH:  South-Western, Cengage Learning.