Basics of the Law - Legal Aspects of Managing Technology | BUL 3564, Study notes of Business and Labour Law

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Basics of the Law

• (^) Sources of American Law:
  • (^) U.S. Constitution and Bill of Rights
  • (^) Statutes
  • (^) Regulations
  • (^) Case law

**Books, articles and the like ≠ law

not sources of law, secondary or otherwise

may be relied on to interpret the law, but, not

actually law

Breaking it down

• (^) Administrative Law:
  • (^) Created by administrative agencies
    • (^) Federal – Department of State; Department of Interior;

Securities and Exchange Commission;

• (^) How it works =
  1. legislation creating the agency/department.
  2. Agency/Department creates regulations to

interpret the primary statutes.

a) Examples: INS, SEC, IRS, EPA

b) Found in Code of Federal Regulation (CFR)

Case Law

• (^) CASE LAW: Laws created by judicial decision.
  • (^) Generally referred to as common law
  • (^) Stare Decises – “To abide by or adhere to, decided cases.

Policy of Courts to stand by precedent and not to disturb

settled point.” Black’s Law Dictionary, 6

th Ed.

Areas of Law

• (^) Civil
  • (^) General civil
    • (^) Contracts, negligence, product liability
    • Family Law
      • (^) Divorce, adoption, support
  • (^) Juvenile dependency
• (^) Criminal
  • (^) Theft, murder, assault, battery, etc.
    • (^) Misdemeanor
    • (^) Felony

Cyberlaw

• (^) Cyberlaw – Still emerging area of law
  • (^) Not actually separate from general civil law
  • (^) Takes and applies substantive and procedural law to

cyber world.

• (^) Infused in many areas of law
• (^) Also, hot topics:
  • (^) Cyber security
  • (^) Import/Export Technology

Federal Law

• CONSTITUTIONAL LAW:

• (^) Supreme law of the land
• (^) Sets forth the manner in which government is to be

established and run

• (^) Federal Form – Power is shared between state

and federal bodies.

• (^) Separation of Power – Manner in which Federal

Government is to be divided to avoid unfair use

of power

Separation of Power

Due Process

• (^) Very Important! Sneak Peak
• (^) Prohibits taking of property, tangible (life, tangible items),

or Intangible (liberty/freedoms) without a fair trial

• (^) Two aspects:
  • (^) Procedural - Fairness in procedures used to take one’s life, liberty

or property.

• (^) Substantive – Substance of the process. The content or reason for

the taking.

• (^) Equal Protection Clause – No one can be denied equal

protection under the law, citizen or not. Use the 5

th Amend.

• Due process to insure 14

th Amend. Equal protection

Constitutional Amendments

• (^) First Amendment – Freedom of speech, religion, press,

peaceful assembly.

• (^) Second – Right to keep and bear arms.
• (^) Third – Prohibits lodging soldiers w/o owner’s consent

during times of peace.

• (^) Fourth – Unreasonable search & seizure prohibited.
• (^) Fifth – No self-incrimination and Due Process
• (^) Sixth – Right to speedy criminal trial and to confront

witnesses.

Types of Protected Speech

• (^) Symbolic:
  • (^) Gestures, movements, articles of clothing.
    • (^) Examples: ????
• (^) Corporate Political Speech
• (^) Commercial Speech – Can be restricted if the following

met:

• (^) Implements a substantial gov’t purpose;
• (^) Prohibition directly advances that interest;
• (^) Goes no further than necessary.

Unprotected Speech

• (^) Defamation

Sneak Peak (Falwell v. Hustler Magazine and Larry

Flynt)

• (^) Violations of criminal laws
• (^) Speech likely to incite violence
• (^) Obscene speech
  • (^) Miller v. California Test:
    • (^) Average person finds it violates contemporary community standards;
    • Work taken as a whole appeals to prurient interests;
    • (^) Work is patently offensive;
    • (^) Work lacks serious redeeming literary, artistic, political or scientific

merit.

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