Business Law Definitions Karen Shrader LS311-03RP1 Business Law October 22, 2013 Common law is defined in our text as body of general rules that applied throughout the entire English realm (Miller/Jentz). I would define it as laws that aren’t written into statutes but the law does recognize them. A great example of this would be common law marriages. Common law marriages are when couples lives together as man and wife for many years but are not legally married. Even though not all states recognize common law marriages but in some states it is recognized as a marriage without the ceremony.
The constitutional role of the judiciary is to apply the law that parliament makes, as said by Lord Diplock in Dupont V steel (1980), ‘Parliament makes the laws, the judiciary interpret them’. However, judges have the power to change rules or make new rules through precedent or statutory interpretation, as mentioned in R V Sigsworth (1935) by Lord Denning, ‘We fill in the gaps’. The doctrine of precedent is based on the requirement that judges must follow decisions made in earlier cases (stare decisis), and on the face of it would seem to limit their freedom to be creative. First of all, there is the hierarchy of the courts, which means that courts are bound by decisions of other courts higher up in the hierarchy. Although with the use of the 1966 Practise Statement, the Supreme Court is allowed to depart from its own earlier decisions, as for example in Hetherington v British Rail and Shivpuri and also in R V Gemmell and Richards (2003) where the Supreme Court overruled the decision in Caldwell by using the 1966 Practise Statement.
Overtime the Constitution has been amended and thus the amendments have been established to further protect citizens from unlawful or repressive acts of government (Bill of Rights are included in the first ten amendments and were established in 1791). Inasmuch, the limited powers have been granted to the three branches of government (Executive, Legislative and Judicial) known as enumerated powers. Primary powers of government have been given to Congress; Congress has enumerated powers in 18 different clauses. The powers that generally impact business owners and managers include (1) the power to regulate commerce ( Commerce Clause ); (2) taxing the citizenry and commercial entities and spending government funds
Incorporation doctrine states that most protections within the Bill of Rights are applied to the states as well as the federal Government, it allows the Supreme Court to apply the Bill of Rights to the states under the Fourteenth Amendment Due Process and Equal Protection Clauses Under the original understanding of the Constitution, the power of the states was not limited by the Bill of Rights. Before these rights States could restrict freedom of speech, search without warrants, and deny trial by jury, just to name three examples. The creation of the Fourteenth Amendment starting in 1925, helped the justices of the U.S. Supreme Court began to rule that some rights were so fundamental to the conception of due process of law that they must apply to the states through the Fourteenth Amendment, which prohibits any state from denying due process of law to any person. However homosexuals are not protected by this doctrine. The 14th Amendment 1868 due process clause this dictates that neither state or Government could get in the way of personal rights this is an extremely effective away to protect the civil liberties of its citizens .
Question: Should the full faith and credit clause uphold gay marriage nationwide? Answer: Yes “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” These words contained in the Full Faith and Credit Clause has been used to unify our states, and provide legal safety nets for a plethora of important binding legalities. Most recently, The Full Faith and Credit Clause had been watered down by other constitutional measures like the 96 “Defense of Marriage Act” but in reality, denying gay marriage national protection under the clause is counter to its purpose and a historical anomaly. Many like current Justice Scalia argue that traditional choice, based on public policy is a standard of US politics and is constitutional. It is for this reason that states do not have to recognize out of state gay marriages unlike other legal measures protected by the Full Faith and Credit Clause.
If there is no precedent then original precedent is made, NHS Airdale Trust v Bland (1993). P4: Court structure. Inc – hierarchy and when able to depart. European Court of Justice binds all lower courts but is not bound by its own past decisions. The House of Lords binds all other English courts but may depart from
The traditional view of the law making process is that parliament makes the law though acts of parliament, as they are democratically elected to make law, whereas judges aren’t so they merely apply it in court to the cases presented to them. However through judicial precedence and statutory interpretation judges are often seen to be making the law, which is shown in McLoughlin v O’Brian where this case introduced the principle of “secondary victims” to be able to succeed in nervous shock. Generally the courts operate a doctrine of precedence which makes every court bound by the decisions made by the courts above it in the hierarchy and courts will be bound by their own precedent decisions. This doctrine is where judges should follow similar decisions made in previous cases to maintain a degree of certainty within the legal system and is based on “stare decicis” which means to stand by what has been decided. However the practice statement allows the supreme court to change the law If they believe that an early case was wrongly decided, but
In this dual system the power is divided [Passive voice ] between the federal governments the main governing body and the states, according to the Constitution there is a dual federalism that states that the only power the federal government has is those listed [Passive voice ] in the Constitution. In reality the system is more like a cooperative federalism because the lines between federal and state powers are blurred [Passive voice ] and cross each other (Siegel, Schmalleger, & Worrall, 2011, pg. 5). This dual court system works well because if state and federal courts were not separated there would be a very big backlog of cases. The courts are behind as it is on cases so if we did not have two different courts to hear cases criminals and innocent people would be spending much more time in prisons waiting trail.
Unit One: Description of terms David A. Demerle Kaplan University LS 311 Business Law 1 Myra Navarro November 14, 2011 Introduction According to the unit 1 assignment, our task is to define the following legal terms in our own words Review/Analysis of the Case: Common law: A practiced tradition dating back to medieval England and adopted by the colonial law makers of the United States; common law is law that relies heavily on judicial precedent based largely from previous cases. Common law is not necessarily a written law, as much as it is an implied law that is widely recognized. For example, a common law marriage is not a traditional form of marriage where a man and women buy a marriage license, stand before
The courts are a part of the judicial branch in the three branches of government. This means that in this branch the laws are interpreted. Like the other two branches, it works to keep the criminal justice system running as smoothly as possible. The laws are make in the legislative branch and is enforced in the executive branch. The police are a part of the executive branch.