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The Practice Of Law In The United States

The Practice of Law in the United States

Jurisprudence is the study of law and the ethical values used to define what a law should involve.  Civil law concerns the rights and duties of individuals, and it generally is used to refer to the legal system that is based on a code rather strictly case law.  Criminal law concerns the offenses that occur against society as a whole. 

In the United States, there are a number of sources of laws that include:

  • Constitution of the US is the supreme law of the US.
  • Treaties are compacts made between two or more nations.
  • Codified law is the process of collecting and restating laws of jurisdiction in certain area.
  • Statutes are written laws enacted by the legislative branch of federal and state governments that establishes certain courses of conduct that must be adhered to by covered parties.
  • Ordinances are laws of local government bodies.
  • Executive orders are laws that are issued by a member of the executive branch of government.
  • Judicial decisions are laws that affect an individual lawsuit issued by federal or state courts.
  • Administrative agency regulations and orders are rules and regulations adopted by agencies created by the legislative and executive branches of government.

In the American law system, courts oversee the application of laws. Precedent is a rule of law established in a court decision. Lower courts must follow the precedent established by higher courts. The doctrine of “stare decisis” means to stand by the decision or adherence to precedent.

The Legal Systems that Regulate Business

The US Constitution creates the three branches of government that include:

  • Legislative (Article I)
  • Executive (Article II)
  • Judicial (Article III)]

The Constitution allocates powers to the three branches of government. Checks and balances are built into the Constitution so that no one branch of government becomes too powerful. It also protects individual rights by limiting the government’s ability to restrict those rights.  Federalism is the US form of government.  Certain powers, called enumerated powers, have been delegated to the federal government by the states when they originally ratified the US Constitution.

Within government there exists “The Supremacy Clause,” which establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land.  As such, federal law takes precedent over state law or local law.  Any state or local law that conflicts with valid federal law is preempted or reduced under the Supremacy Clause.

The “Commerce Clause” within the federal government gives the federal government authority to regulate interstate commerce. This means that the federal government can ultimately affect the regulation of activities that affect commerce. The regulated activity does not itself have to be in interstate commerce.  Also, The Commerce Clause gives the federal government exclusive power to regulate commerce with foreign nations.  However, individual state regulation of foreign commerce is prohibited.

The individual states of the US retain the power to regulate intrastate and interstate business activities that occur within their borders.  This practice is referred to as police power. State and local laws cannot excessively burden interstate commerce.  However, if this does occur,  it is considered an unconstitutional violation of the Commerce Clause.

Contracting

Within the practice of business in the US is the concept of contracting.  A contract is a duty,  promise or a set of promises between parties who do business together.  A contract may consist of a single duty or promise or mutual promises by more than one person.  However, the basic idea is that, within business, contracts compel individuals and business to act in the best interest of an agreement.

A breach of a contract falls under a common legal process that provides a remedy for the party that may have been injured from the contract breach.  The concept of remedy at law refers to payments of money of property as a means to settle the damages that may occur from a breach of a contract.  The concept of remedy in equity occurs if there is no specific or adequate remedy by law.  Remedies in equity are discretionary and are guided by principles that govern society.  The primary difference between remedies of law or equity is that, in equity, an individual has the right to demand a jury trial to settle a disagreement.

To settle contract disputes, or disagreements, courts may order a party to perform whatever service was promised.  However, an injunction may be ordered, which orders a person to refrain from doing a particular act.  Rescission is the order that will undo an agreement that returns the parties to their original positions prior to the agreement.

Read more about contracting in business from the following web article entitled, “Understanding Contracts”: http://www.dummies.com/WileyCDA/DummiesArticle/id-663.html.

 

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