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(Download PDF) Business Law Today Comprehensive Mindtap Course List 13Th Edition Roger Leroy Miller Full Chapter PDF
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13th Edition
Business Law
Today
COMPREHENSIVE Edition
Text & Cases
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Business Law Today, Comprehensive Edition, © 2022, 2020 Cengage Learning, Inc.
Text & Cases 13th Edition
WCN: 02-300
Roger LeRoy Miller
Unless otherwise noted, all content is © Cengage.
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Contents in Brief
Unit 1 The Legal Environment of Business 1 Unit 5 Business Organizations 699
1 Law and Legal Reasoning 1 30 Sole Proprietorships and Franchises 700
2 Constitutional Law 34 31 All Forms of Partnership 716
3 Ethics in Business 59 32 Limited Liability Companies and Special Business Forms 739
4 Courts and Alternative Dispute Resolution 88 33 Corporate Formation and Financing 756
5 Tort Law 123 34 Corporate Directors, Officers, and Shareholders 777
6 Product Liability 151 35 Corporate Mergers, Takeovers, and Termination 796
7 Intellectual Property Rights 171 36 Investor Protection, Insider Trading, and Corporate
8 Internet Law, Social Media, and Privacy 197 Governance 812
9 Criminal Law and Cyber Crime 220
Unit 6 Government Regulation 839
Unit 2 Contracts and E-Contracts 249 37 Administrative Law 840
10 Nature and Classification 250 38 Antitrust Law and Promoting Competition 860
11 Agreement 269 39 Consumer and Environmental Law 883
12 Consideration 293 40 Liability of Accountants and Other Professionals 911
13 Capacity and Legality 307
14 Voluntary Consent 326 Unit 7 Property and Its Protection 933
15 The Statute of Frauds—Writing Requirement 340
41 Personal Property and Bailments 934
16 Performance and Discharge 356
42 Real Property and Landlord-Tenant Law 956
17 Breach and Remedies 372
43 Insurance, Wills, and Trusts 980
18 Third Party Rights 393
APPENDICES
Unit 3 Commercial Transactions 409
A How to Brief Cases and Analyze Case Problems A–1
19 The Formation of Sales and Lease Contracts 410
B The Constitution of the United States A–3
20 Title and Risk of Loss 434 C The Uniform Commercial Code A–3
21 Performance and Breach of Sales and Lease Contracts 450 D Answers to the Issue Spotters A–4
22 Negotiable Instruments 481
E Sample Answers for Business Case Problems
23 International and Space Law 513 with Sample Answer A–11
24 Banking 535
25 Security Interests and Creditors’ Rights 558 Glossary G–1
26 Bankruptcy 588 Table of Cases TC–1
Index I–1
Unit 4 Agency and Employment Law 615
27 Agency Relationships in Business 616
28 Employment, Immigration, and Labor Law 644
29 Employment Discrimination 672
iii
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Contents
iv
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Contents v
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vi Contents
Case 9.1: United States v. Crabtree 224 Defenses to Criminal Liability 234
■■ Managerial Strategy: The Criminalization of Constitutional Safeguards 236
American Business 226
Cyber Crime 239
Types of Crimes 228 ■■ Landmark in the Law: Miranda v. Arizona (1966) 240
Spotlight on White-Collar Crime: Case 9.2: People v. Sisuphan 230 ■■ Cybersecurity and the Law: Counter-Strike: Global Offensive 242
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Contents vii
Chapter 15 Chapter 17
The Statute of Frauds— Breach and Remedies 372
Writing Requirement 340 Damages 373
The Writing Requirement 340 ■■ Cybersecurity and the Law: Arby’s Restaurant Group, Inc. 374
Case 15.1: Sloop v. Kiker 341 Case 17.1: HDAV Outdoor, LLC v. Red Square Holdings, LLC 376
■■ Landmark in the Law: Hadley v. Baxendale (1854) 377
Exceptions to the Statute of Frauds 345
Spotlight on Liquidated Damages: Case 17.2: Kent State
Sufficiency of the Writing 347
University v. Ford 379
Case 15.2: Moore v. Bearkat Energy Partners, LLC 348
Equitable Remedies 380
The Parol Evidence Rule 348 ■■ Business Law Analysis: Enforceability of Liquidated
Case 15.3: Habel v. Estate of Capelli 349 Damages Provisions 381
Case 17.3: Cipriano Square Plaza Corp. v. Munawar 381
Chapter 16 Recovery Based on Quasi Contract 385
Contract Provisions Limiting Remedies 386
Performance and Discharge 356
Conditions of Performance 356
Discharge by Performance 358
Chapter 18
■■ Business Law Analysis: Determining When a Breach Third Party Rights 393
Is Material 360
Case 16.1: Chalk Supply LLC v. Ribbe Real Assignments 393
Estate LLC 361 Case 18.1: JP Morgan Chase Bank N.A. v. McNeill 395
Discharge by Agreement 362 Delegations 398
Case 16.2: DWB, LLC v. D&T Pure Trust 364 Case 18.2: Mirandette v. Nelnet, Inc. 400
Discharge by Operation of Law 365 Third Party Beneficiaries 401
Case 16.3: Hampton Road Bankshares, Inc. v. Harvard 366 Case 18.3: Bozzio v. EMI Group, Ltd. 401
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viii Contents
Risk of Loss 442 Case 23.2: Changzhou Trina Solar Energy Co.,
Case 20.3: Total Quality Logistics, LLC v. Balance Transportation, LLC 443 Ltd. v. International Trade Commission 523
Insurable Interest 446 U.S. Laws in a Global Context 525
Spotlight on International Torts: Case 23.3:
Daimler AG v. Bauman 526
Chapter 21 Space Law 528
Performance and Breach of ■■ Cybersecurity and the Law: Safe Satellites 529
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Contents ix
■■ Business Web Log: Online Competition, Bankruptcy, Case 26.1: In re Anderson 600
and the “Retail Apocalypse” 589 Case 26.2: In re Dykes 603
■■ Landmark in the Law: The Bankruptcy Abuse Prevention
and Consumer Protection Act 590 Chapter 11—Reorganization 605
Chapter 7—Liquidation 591 Bankruptcy Relief under Chapter 13 and Chapter 12 607
■■ Business Law Analysis: Violations of the Automatic Stay 595 Case 26.3: In re Chamberlain 609
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x Contents
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Contents xi
Section 2 of the Sherman Act 867 Potential Liability to Third Parties 917
The Clayton Act 870 Liability of Accountants under Federal Laws 919
■■ Adapting the Law to the Online Environment: Big Case 40.2: Laccetti v. Securities and Exchange Commission 921
Tech’s Monopoly Problem 870 Potential Criminal Liability 925
Case 38.2: Candelore v. Tinder, Inc. 872 Confidentiality and Privilege 926
Enforcement and Exemptions 875 Case 40.3: Commonwealth of Pennsylvania v. Schultz 926
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xii Contents
Appendices
Chapter 42
A How to Brief Cases and Analyze Case Problems A–1
Real Property and
B The Constitution of the United States A–3
Landlord-Tenant Law 956
The Nature of Real Property 956 C The Uniform Commercial Code A–3
Ownership Interests and Leases 958 D Answers to the Issue Spotters A–4
Case 42.1: In the Matter of the Estate of Nelson 959
Transfer of Ownership 964 E Sample Answers for Business Case Problems
Spotlight on Sales of Haunted Houses: Case 42.2: with Sample Answer A–11
Stambovsky v. Ackley 965
■■ Business Law Analysis: When Possession of Property Is
Not “Adverse” 969 Glossary G–1
Case 42.3: A2 Creative Group, LLC v. Anderson 969 Table of Cases TC–1
Landlord-Tenant Relationships 972 Index I–1
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Preface
T
he present world landscape poses numerous challenges for students planning careers
in the business world. It also offers limitless opportunities. To take advantage of those
opportunities, prospective entrepreneurs—whether they aspire to work on Wall Street
or Main Street—need to have a solid understanding of business law and the legal environ-
ment of corporate America. The most up-to-date text on the market, Business Law Today:
Comprehensive Edition, Thirteenth Edition, provides the perfect platform to achieve this goal.
Instructors have come to rely on the coverage, accuracy, and applicability of Business
Law Today. This best-selling text engages your students, solidifies their understanding of
legal concepts, and provides the best teaching tools available. Working on this edition, my
objective was to make its pages more interesting, to the point, and visually compelling than
ever before. I put particular focus on pedagogical devices within the text that focus on legal,
ethical, and corporate issues, while never losing sight of the course’s core curriculum.
The Thirteenth Edition incorporates the latest legal developments, from United States
Supreme Court decisions to state-level legislation. It also includes nearly forty new and
updated features and more than thirty new cases from 2019 and 2020, over one hundred
new Examples and Case Examples, along with an extensive array of exhibits, Focus Questions,
margin definitions, and case problems.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xiv Preface
4. Adapting the Law to the Online Environment features examine cutting-edge cyberlaw
topics, such as:
• The Problem of “Contract Cheating” (Chapter 14)
• Open Banking (Chapter 24)
• Big Tech’s Monopoly Problem (Chapter 38)
5. Business Law Analysis features appear in numerous chapters of the text. These
features are useful tools to help students master the legal analysis skills that they
will need to answer questions and case problems in the book, on exams, and in
everyday business situations. Topics include:
• The Impact of Patent Time Limits (Chapter 7)
• Deciding If a Court Would Impose a Quasi Contract (Chapter 10)
• Workers’ Compensation Claims (Chapter 28)
6. Ethical Issue features focus on the ethical aspects of a topic being discussed in order
to emphasize that ethics is an integral part of a business law course. Examples
include:
• Even Though Corporations Can Restrict the Speech of Their Employees, Should They
Do So? (Chapter 2)
• Does the Gig Economy Take Advantage of Independent Contractors? (Chapter 27)
• Does Corporate America Need Gender Quotas for Boards of Directors? (Chapter 36)
7. Managerial Strategy features emphasize the management aspects of business law
and the legal environment. Topics include:
• The Power of Precedents (Chapter 1)
• The Stakeholder Capitalism Movement (Chapter 3)
• Can a Person Who Is Not a Member of a Protected Class Sue for Discrimination?
(Chapter 32)
8. Landmark in the Law features discuss a landmark case, statute, or development that
has significantly affected business law. Examples include:
• Palsgraf v. Long Island Railroad Co. (Chapter 5)
• The Digital Millennium Copyright Act (Chapter 8)
• Federal Trade Commission Rule 433 (Chapter 22)
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Preface xv
After Chapter 3, to reinforce the application of the IDDR Approach, students are asked
to use its various steps when answering each chapter’s A Question of Ethics. In addition, the
Thirteenth Edition retains the Ethical Issue feature in most chapters, several of which have
been refreshed with timely topics involving the ever-evolving technologies and trends in
business.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xvi Preface
about some aspect of the law discussed in the chapter or a Business Law Writing question
requiring students to compose a written response.
Chapter-Ending Pedagogy
• Practice and Review (in every chapter).
• Debate This (a statement or question at the end of Practice and Review).
• Key Terms (with appropriate page references to their margin definitions).
• Chapter Summary (in table format).
• Issue Spotters (in every chapter with answers in Appendix D).
• Business Scenarios and Case Problems (including in every chapter, a Business
Case Problem with Sample Answer that is answered in Appendix E; in selected
chapters, a Spotlight Case Problem; and in every chapter, a A Question of Ethics
that applies this textbook’s unique IDDR Approach to business ethics).
• Critical Thinking and Writing Assignments (including a Time-Limited Group
Assignment in every chapter, and a Business Law Writing or a Critical Legal
Thinking question in selected chapters).
Unit-Ending Pedagogy
Each of the seven units in the Thirteenth Edition of Business Law Today: Comprehensive Edi-
tion concludes with a Task-Based Simulation. This feature presents a hypothetical business
situation and then asks a series of questions about how the law applies to various actions
taken by the firm. To answer the questions, the student must apply the laws discussed
throughout the unit. (Answers are provided in the Answers Manual.)
Supplements
Business Law Today, Thirteenth Edition, provides a comprehensive supplements package
designed to make the tasks of teaching and learning more enjoyable and efficient. The fol-
lowing supplements are available for instructors.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Preface xvii
Use MindTap as-is or customize it to meet your specific needs. You can even integrate it
easily into your institution’s Learning Management System (LMS).
A streamlined learning path and redesigned assessments minimize reader distraction,
while dual-pane assignments for students pair readings side-by-side with assessments. Mind-
Tap presents complex concepts using a blend of engaging narrative and media assets clearly
linked to assessments. So, students can start applying concepts to real-world situations from
the beginning of your course with content that progresses from understanding core concepts
to critical thinking and, ultimately, application.
Exclusive Instructor Tools allow you to customize course content to your needs and
tailor assessments to match the specific language and style of your course. New Instructor
Reports provide actionable insights into student performance and present opportunities for
just-in-time intervention.
Product Features
MindTap’s outcomes-based learning design propels students from memorization to mastery. It’s
the only platform today that gives you complete ownership of your course. With MindTap you
can challenge every student, build confidence, and empower today’s learners to be unstoppable.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xviii Preface
Chapter-Level Ebook
Immediately engage students with a dynamic eBook that brings the value, concepts and
applications of the printed text to life. Students open an active learning experience as each
chapter provides opportunities to interact with content using the approach that’s best for
the individual learner.
Learn It Activities
Easily add multimedia instruction to your course to supplement textbook learning. Mind-
Tap’s Learn It activities offer small sections of instruction in the form of narrative, images,
and/or Quick Lesson Videos that highlight the most important concepts in each chapter.
Learn It activities reinforce the text’s instruction and even approach concepts in a different
way to promote student choice and autonomy with personalizing learning. You can assign
Learn It activities to ensure that students have read and understand key concepts before class.
Apply It Activities
Assign any of MindTap’s carefully designed, practically focused application activities to
ensure your students know how to make business decisions through the lens of the law.
• Case Problem Analyses offer a multi-step activity that asks students to
identify the facts in a scenario through a series of questions that promote a
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Preface xix
critical-thinking process so that students can arrive at the decision of the court.
In the second part, the facts are changed, and students apply the same critical-
thinking process on their own.
• Brief Hypotheticals help students spot the issue and apply the law in the context
of a short, fictional scenario.
Start Right Away! Cengage Testing Powered by Cognero works on any operating system or
browser.
• Use your standard browser; no special installs or downloads are needed.
• Create tests from school, home, the coffee shop—anywhere with Internet access.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xx Preface
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Acknowledgments
S
ince I began this project many years ago, numerous business law professors and users
of Business Law Today have been kind enough to help me revise the book and digital
offerings, including the following:
xxi
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
xxii Acknowledgments
Victor C. Parker, Jr. William M. Rutledge Elisabeth “Lisa” Sperow Whitney B. Westrich
North Georgia College and State University Macomb Community College, Michigan California Polytechnic State University, University of Cincinnati
San Luis Obispo
Jane Patterson Roberto Sandoval Clark W. Wheeler
Ozarks Technical Community College and University of Texas at El Paso Catherine A. Stevens Santa Fe Community College, Florida
Missouri State University College of Southern Maryland
Martha Wright Sartoris Lori Whisenant
Donald L. Petote North Hennepin Community College, Nicole Forbes Stowell, University of Houston, Texas
Genesee Community College, New York Minnesota Esquire Kay O. Wilburn
University of Southern Florida, St. Petersburg The University of Alabama at Birmingham
Francis D. Polk Kurt M. Saunders
Ocean County College, New Jersey Andrea Studzinski
California State University, John G. Williams, J.D.
Northridge College of DuPage Northwestern State University, Louisiana
Gregory Rabb
Jamestown Community College, New York Maurice Tonissi
Anne W. Schacherl Shallin S. Williams
Madison Area Technical College, Quinsigamond Community College, Massachusetts Tri-County Technical College
Brad Reid
Abilene Christian University, Texas Wisconsin James D. Van Tassel James L. Wittenbach
Edward F. Shafer Mission College, California University of Notre Dame, Indiana
Anne Montgomery
Ricketts Rochester Community College, Minnesota Russell A. Waldon Abby A. Wood, Esq.
University of Findlay, Ohio College of the Canyons, California Mt. San Antonio College
Lance Shoemaker, J.D.,
Donald A. Roark M.C.P., M.A. Frederick J. Walsh Margaret M. Wright,
University of West Florida West Valley College, California Franklin Pierce College, New Hampshire
J.D. LL.M.
Joey Robertson Lou Ann Simpson James E. Walsh, Jr. University of Illinois, Urbana-Champaign
Sam Houston State University Drake University, Iowa Tidewater Community College, Virginia Eric D. Yordy
Hugh Rode Anthony A. Smith Randy Waterman Northern Arizona University
Utah Valley State College Ithaca College Richland College, Texas Joseph Zavaglia, Jr.
Gerald M. Rogers Denise Smith Jerry Wegman Brookdale Community College, New Jersey
Front Range Community College, Colorado Missouri Western State College University of Idaho Alexandria Zylstra,
Dr. William J. Russell Hugh M. Spall Edward L. Welsh, Jr. J.D., LL.M.
Northwest Nazarene University, Idaho Central Washington University Phoenix College, Arizona George Mason University
In addition, I give my thanks to the staff at Cengage, especially Abbie Schultheis, Associate
Product Manager; Joe Sabatino, Product Director; Julia Chase, Senior Content Manager;
Cazzie Reyes and Liz Harnage, Learning Designers; Lisa Elliot, Subject Matter Expert;
Steven McMillian, Digital Delivery Lead; Nick Perez, Product Assistant; Ashley Maynard,
Permissions Analyst; and Nick Barrows, Permissions Project Manager. I also thank Andrew
Stock in Marketing. Additionally, I would like to thank my project manager Ann Borman
at SPi Global, the compositor, for accurately generating pages for the text and making it
possible for me to meet my ambitious schedule for the print and digital products.
I give special thanks to Katherine Marie Silsbee for managing the project and providing
exceptional research and editorial skills. I also thank William Eric Hollowell, co-author of the
Answers Manual for his excellent research efforts. I am grateful for the copyediting services of
Beverly Peavler and proofreading services of Maureen Johnson. I also thank Vickie Reierson
and Suzanne Jasin for their many efforts on this project.
Roger LeRoy Miller
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Dedication
R.L.M.
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Unit 1
The Legal
Environment of
Business
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Focus Questions
1 Law and Legal Reasoning
“Laws should be like In the chapter-opening quotation, Clarence Darrow asserts
The four Focus Questions below clothes. They should that law should be created to serve the public. Because
are designed to help improve your you are part of that public, the law is important to you. In
understanding. After reading this chapter, be made to fit the particular, those entering the world of business will find
you should be able to answer the following people they are themselves subject to numerous laws and government reg-
questions:
meant to serve.” ulations. A basic knowledge of these laws and regulations
1. What are four primary is beneficial—if not essential—to anyone contemplating a
Clarence Darrow
sources of law in the United 1857–1938
successful career in today’s business environment.
States? (American lawyer) Although the law has various definitions, all of them
are based on the general observation that law consists of
2. What is a precedent? When
enforceable rules governing relationships among individuals and between individuals and
might a court depart from
their society. In some societies, these enforceable rules consist of unwritten principles of
precedent?
behavior. In other societies, they are set forth in ancient or contemporary law codes. In
3. What is the difference the United States, our rules consist of written laws and court decisions created by modern
between remedies at law and legislative and judicial bodies. Regardless of how such rules are created, they all have one
remedies in equity? feature in common: they establish rights, duties, and privileges that are consistent with the
4. What are some important values and beliefs of a society or its ruling group.
differences between civil law In this introductory chapter, we look at how business law and the legal environment
and criminal law? affect business decisions. For instance, suppose that Mototron, Inc., plans to introduce
a driverless car equipped with lidar, a radar system that relies on lasers, and artificially
intelligent cameras. Even if its technicians put the vehicles through two million miles of
testing on closed courses and deem them low risk, Mototron cannot simply start selling
Law A body of enforceable rules
governing relationships among rides to consumers. The company must first test the cars on public roads, which requires
individuals and between individuals permission from state governments. It must also establish safety rules with federal regula-
and their society. tors and negotiate sustainable insurance rates. At each step, Mototron will have to adjust
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CHAPTER 1: Law and Legal Reasoning 3
its bottom line to take account of the legal costs of introducing cutting-edge but potentially
dangerous technology into the American marketplace.
Our goal in this text is not only to teach you about specific laws, but also to teach you
how to think about the law and legal environment, and to develop your critical-thinking
and legal reasoning skills. The laws may change, but the ability to analyze and evaluate the
legal (and ethical) ramifications of situations as they arise is an invaluable and lasting skill.
Exhibit 1–1 Areas of the Law That May Affect Business Decision Making
Contracts
Environmental Negotiable
Laws Instruments
Business
Business Creditors’
Decision
Organizations Rights
Making
Intellectual
Agency Property
Torts Professional
Liability
Product
Liability
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4 UNIT ONE: The Legal Environment of Business
Example 1.1 Soon after it launched, YouTube faced a potentially catastrophic $1 billion
copyright infringement lawsuit. Entertainment conglomerate Viacom claimed that the
video-hosting platform was not taking sufficient steps to remove unlicensed use of Viacom’s
content on its site. A federal judge ensured YouTube’s survival by ruling that the company
was in compliance with federal copyright law as long as it responded reasonably to “take-
down” requests from Viacom and other content providers.
Not surprisingly, with five hundred hours of video uploaded to its site each minute, You-
Tube has remained under constant legal pressure ever since. Liberal and conservative groups
have sued the company for discriminating against their political viewpoints. It has faced
regulatory scrutiny for, among other things, failing to protect users from sexual and racist
harassment and hosting misleading election-related video content. At one point, the Federal
Trade Commission fined the company $170 million for collecting personal information from
children without their parents’ consent. ■
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CHAPTER 1: Law and Legal Reasoning 5
Uniform Laws During the 1800s, the differences among state laws frequently created dif-
ficulties for businesspersons conducting trade and commerce among the states. To counter
these problems, a group of legal scholars and lawyers formed the National Conference of
Commissioners on Uniform State Laws (NCCUSL, online at www.uniformlaws.org) in 1892
to draft uniform laws (“model statutes”) for the states to consider adopting. The NCCUSL still Uniform Laws Model laws
exists today and continues to issue uniform laws. developed by the National
Each state has the option of adopting or rejecting a uniform law. Only if a state legislature Conference of Commissioners on
Uniform State Laws for the states to
adopts a uniform law does that law become part of the statutory law of that state. Furthermore, consider enacting into statute.
a state legislature may choose to adopt only part of a uniform law or to rewrite the sections
that are adopted. Hence, even though many states may have adopted a uniform law, those
laws may not be entirely “uniform.”
The Uniform Commercial Code (UCC) One of the most important uniform acts is the
Uniform Commercial Code (UCC), which was created through the joint efforts of
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6 UNIT ONE: The Legal Environment of Business
the NCCUSL and the American Law Institute.1 The UCC was first issued in 1952 and has
been adopted in all fifty states,2 the District of Columbia, and the Virgin Islands.
The UCC facilitates commerce among the states by providing a uniform, yet flexible, set
of rules governing commercial transactions. Because of its importance in the area of com-
mercial law, we cite the UCC frequently in this text. From time to time, the NCCUSL revises
the articles contained in the UCC and submits the revised versions to the states for adoption.
State and Local Agencies There are administrative agencies at the state and local levels
as well. Commonly, a state agency (such as a state pollution-control agency) is created as a
parallel to a federal agency (such as the Environmental Protection Agency).
Just as federal statutes take precedence over conflicting state statutes, so do federal agency
regulations take precedence over conflicting state regulations. Because the rules of state and
local agencies vary widely, we focus here exclusively on federal administrative law.
Agency Creation Because Congress cannot possibly oversee the actual implementation of
all the laws it enacts, it delegates such tasks to agencies. Congress creates an administrative
Enabling Legislation A statute agency by enacting enabling legislation, which specifies the name, composition, purpose, and
enacted by Congress that authorizes powers of the agency being created.
the creation of an administrative Example 1.3 The Federal Trade Commission (FTC) was created in 1914 by the Federal
agency and specifies the name,
composition, purpose, and powers of
Trade Commission Act.3 This act prohibits unfair and deceptive trade practices. It also
the agency being created. describes the procedures the agency must follow to charge persons or organizations with
violations of the act, and it provides for judicial review (review by the courts) of agency
orders.
Other portions of the act grant the agency powers to “make rules and regulations for the
Adjudicate To render a judicial purpose of carrying out the Act,” and to conduct investigations of business practices. In
decision. Adjudication is the
addition, the FTC can obtain reports from interstate corporations concerning their business
trial-like proceeding in which an
administrative law judge hears practices, investigate possible violations of the act, publish findings of its investigations, and
and resolves disputes involving an recommend new legislation. The act also empowers the FTC to hold trial-like hearings and
administrative agency’s regulations. to adjudicate (resolve judicially) certain kinds of disputes involving its regulations.
1. This institute was formed in the 1920s and consists of practicing attorneys, legal scholars, and judges.
2. Louisiana has adopted only Articles 1, 3, 4, 5, 7, 8, and 9.
3. 15 U.S.C. Sections 45–58.
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CHAPTER 1: Law and Legal Reasoning 7
Note that the powers granted to the FTC incorporate functions associated with the legis- Administrative Process The
lative branch of government (rulemaking), the executive branch (investigation and enforce- procedure used by administrative
ment), and the judicial branch (adjudication). Taken together, these functions constitute agencies in fulfilling their three basic
functions: rulemaking, enforcement,
the administrative process, which is the administration of law by administrative agencies. The and adjudication.
administrative process involves rulemaking, enforcement, and adjudication. ■
Legislative Rules. Legislative rulemaking under the APA typically involves the
following three steps (referred to as notice-and-comment rulemaking).
Which federal agency oversees worker
1. Notice of the proposed rulemaking. The notice must be published in the safety?
Federal Register, a daily publication of the U.S. government.
2. A comment period. The agency must allow ample time for interested parties to
comment in writing on the proposed rule. The agency takes these comments into Rulemaking The process by which
consideration when drafting the final version of the regulation. an administrative agency formally
adopts a new regulation or amends
3. The final rule. Once the agency has drafted the final rule, it is published in the an old one.
Federal Register. (See the appendix at the end of this chapter for an explanation of
how to find agency regulations.) Legislative Rules Administrative
agency rules that carry the same
Interpretive Rules. Administrative agencies also issue interpretive rules that are not legally weight as congressionally enacted
binding but simply indicate how an agency plans to interpret and enforce its statutory statutes.
authority. The APA does not apply to interpretive rulemaking. Example 1.5 The Equal Employ- Interpretive Rules Nonbinding
ment Opportunity Commission periodically issues interpretive rules indicating how it plans rules or policy statements issued by
to interpret the provisions of certain statutes, such as the Americans with Disabilities Act. an administrative agency that explain
These informal rules provide enforcement guidelines for agency officials. ■ how it interprets and intends to apply
the statutes it enforces.
Enforcement and Investigation Agencies often enforce their own rules and have both
investigatory and prosecutorial powers. Agencies investigate a wide range of activities,
including coal mining, automobile manufacturing, and the industrial discharge of pollut-
ants into the environment.
In an investigation, an agency can request that individuals or organizations hand over
specified books, papers, electronic records, or other documents. In addition, agencies may
conduct on-site inspections, although a search warrant is normally required for such inspec-
tions.5 Sometimes, a search of a home, an office, or a factory is the only means of obtaining
evidence needed to prove a regulatory violation.
After investigating a suspected rule violation, an agency may decide to take action against
an individual or a business. Most administrative actions are resolved through negotiated
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8 UNIT ONE: The Legal Environment of Business
settlement at their initial stages without the need for formal adjudication. If a settlement
cannot be reached, though, the agency may issue a formal complaint and proceed to
adjudication.
Administrative Law Judge Adjudication Agency adjudication involves a trial-like hearing before an administrative law
(ALJ) One who presides over an judge (ALJ). Hearing procedures vary widely from agency to agency. After the hearing, the
administrative agency hearing and ALJ renders a decision in the case. The ALJ can fine the charged party or prohibit the party
has the power to administer oaths,
from carrying on some specified activity.
take testimony, rule on questions of
evidence, and make determinations Either the agency or the charged party may appeal the ALJ’s decision to the commission
of fact. or board that governs the agency. If the party fails to get relief there, appeal can be made
to a federal court. Courts give significant weight (deference) to an agency’s judgment and
interpretation of its rules, though, and typically uphold the ALJ’s decision unless it is unrea-
sonable. If neither side appeals the case, the ALJ’s decision becomes final.
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CHAPTER 1: Law and Legal Reasoning 9
Controlling Precedents Precedents that must be followed within a jurisdiction are known
as controlling precedents. Controlling precedents are binding authorities. A binding authority is Binding Authority Any source of
any source of law that a court must follow when deciding a case. Binding authorities include law that a court must follow when
deciding a case.
constitutions, statutes, and regulations that govern the issue being decided, as well as court
decisions that are controlling precedents within the jurisdiction. United States Supreme Court
case decisions, no matter how old, remain controlling until they are overruled by a subsequent
decision of the Supreme Court, by a constitutional amendment, or by congressional legislation.
Know This
Courts normally must
Stare Decisis and Legal Stability The doctrine of stare decisis helps the courts to be more follow the rules set
efficient because if other courts have carefully reasoned through a similar case, their legal forth by higher courts
in deciding cases with
6. Pronounced stahr-ee dih-si-sis. similar fact patterns.
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10 UNIT ONE: The Legal Environment of Business
reasoning and opinions can serve as guides. Stare decisis also makes the law more stable and
predictable. If the law on a given subject is well settled, someone bringing a case to court
can usually rely on the court to make a decision based on what the law has been. (See this
chapter’s Managerial Strategy feature to learn how this stability can help business managers
in their decision-making process.)
Departures from Precedent Although courts are obligated to follow precedents, some-
times a court will depart from the rule of precedent. If a court decides that a precedent is
simply incorrect or that technological or social changes have rendered the precedent inap-
plicable, the court may rule contrary to the precedent. Cases that overturn precedent often
receive a great deal of publicity.
Classic Case Example 1.6 In Brown v. Board of Education of Topeka,7 the United States
Supreme Court expressly overturned precedent. The Court concluded that separate educa-
tional facilities for whites and blacks, which had previously been upheld as constitutional,8
were inherently unequal. The Supreme Court’s departure from precedent in the Brown deci-
sion received a tremendous amount of publicity as people began to realize the ramifications
of this change in the law. ■
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CHAPTER 1: Law and Legal Reasoning 11
When There Is No Precedent Occasionally, courts must decide cases for which no prec-
edents exist, called cases of first impression. For instance, as you will read throughout this
text, the Internet and certain other technologies have presented many new and challenging
issues for the courts to decide.
When deciding cases of first impression, courts often look at persuasive authorities.
A persuasive authority is a legal authority that a court may consult for guidance but that is not Persuasive Authority Any legal
binding on the court. A court may consider precedents from other jurisdictions, for instance, authority or source of law that a court
although those precedents are not binding. A court may also consider legal principles and may look to for guidance but need not
follow when making its decision.
policies underlying previous court decisions or existing statutes. Additionally, a court might
look at fairness, social values and customs, and public policy (governmental policy based
on widely held societal values). Federal courts can also look at unpublished opinions (those
not intended for publication in a printed legal reporter) as sources of persuasive
authority.9
Stare Decisis and Legal Reasoning In deciding what law applies to a given dispute and
then applying that law to the facts or circumstances of the case, judges rely on the process
of legal reasoning. Through the use of legal reasoning, judges harmonize their decisions with Legal Reasoning The process
those that have been made before, as the doctrine of stare decisis requires. of reasoning by which a judge
Students of business law and the legal environment also engage in critical thinking and harmonizes his or her opinion with
the judicial decisions in previous
legal reasoning. For instance, you may be asked to provide answers for some of the case cases.
problems that appear at the end of every chapter in this text. Each problem describes the
facts of a particular dispute and the legal question at issue. If you are assigned a case problem,
you will be asked to determine how a court would answer that question, and why. In other
words, you will need to give legal reasons for whatever conclusion you reach.
Basic Steps in Legal Reasoning. At times, the legal arguments set forth in court opinions
are relatively simple and brief. At other times, the arguments are complex and lengthy.
Regardless of the length of a legal argument, however, the basic steps of the legal reasoning
process remain the same. These steps, which you can also follow when analyzing cases and
case problems, form what is commonly referred to as the IRAC method of legal reasoning.
IRAC is an acronym formed from the first letters of the words Issue, Rule, Application, and
Conclusion. To apply the IRAC method, ask the following questions:
1. Issue—What are the key facts and issues? This may sound obvious, but before
you can analyze or apply the relevant law to a specific set of facts, you must clearly
understand those facts. In other words, you should read through the case problem
carefully—more than once, if necessary. Make sure that you understand the
identities of the plaintiff (the one who initiates the lawsuit) and the defendant (the Plaintiff One who initiates a lawsuit.
one being sued) in the case, and the progression of events that led to the lawsuit.
Defendant One against whom a
Suppose that a plaintiff, Anna, comes before the court claiming assault (words
lawsuit is brought or the accused
or acts that wrongfully and intentionally make another person apprehensive of person in a criminal proceeding.
harmful or offensive contact). Anna claims that the defendant, Bryce threatened
her while she was sleeping. Although the plaintiff was unaware that she was being
threatened, her roommate, Jan, heard the defendant make the threat. So, in this
scenario, the identities of the parties are obvious. Anna is the plaintiff, and Bryce is
the defendant.
The legal issue in this case is whether the defendant’s action constitutes the
tort of assault even though the plaintiff was unaware of that threat at the time it
occurred. (A tort is a wrongful act brought under civil rather than criminal law.)
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12 UNIT ONE: The Legal Environment of Business
2. Rule—What rule of law applies to the case? A rule of law may be a rule stated by
the courts in previous decisions, by a state or federal statute, or by a state or federal
administrative agency regulation. Often, more than one rule of law will be applicable
to a case.
Allege To state, recite, assert, or In our hypothetical case, Anna and her attorney allege (claim) that Bryce committed
charge. a tort. Therefore, the applicable law is the common law of torts—specifically, tort law
governing assault. Case precedents involving similar facts and issues thus would be
relevant.
3. Application—How does the rule of law apply to the particular facts and circumstances
of this case? This step is often the most difficult because each case presents a unique
set of facts, circumstances, and parties. Although cases may be similar, no two cases
are ever identical in all respects.
Normally, judges (and lawyers and law students) try to find previously decided
cases that are as similar as possible to the one under consideration. Such a case is
Case on Point A previous case called a case on point. In this situation, there might be case precedents showing that
involving factual circumstances and if a victim is unaware of the threat of harmful or offensive contact, then no assault
issues that are similar to those in the occurred. These would be cases on point that tend to prove that the defendant did
case before the court.
not commit assault and should win the case.
There might, however, also be cases showing that a sexual assault, at least, can
occur even if the victim is asleep. These would be cases on point in the plaintiff’s
favor. You will need to carefully analyze if there are any missing facts in Anna’s
claim. For instance, you might want to know the specific threat that Bryce made
(and Anna’s roommate overheard). Did he threaten to rape, kill, or beat her? Did he
know that she was asleep when he made the threat? Did he know that her roommate
heard the threat and would relay it to her when she awoke? Sometimes, you will
want to obtain additional facts before analyzing which case precedents should apply
and control the outcome of the case.
4. Conclusion—What conclusion should be drawn? This step normally presents few
problems. Usually, the conclusion is evident if the previous three steps have been
followed carefully. In our sample problem, for instance, you may determine that
Bryce did not commit a tort because Anna could not prove all of the required
elements of assault.
There Is No One “Right” Answer. Many people believe that there is one “right” answer to
every legal question. In many legal controversies, however, there is no single correct result.
Good arguments can usually be made to support either side of a legal controversy. Quite
often, a case does not involve a “good” person suing a “bad” person. In many cases, both
parties have acted in good faith in some measure or in bad faith to some degree. Addition-
ally, each judge has her or his own personal beliefs and philosophy. To some extent, these
Remedy The relief given to an personal factors shape the legal reasoning process.
innocent party to enforce a right or
compensate for the violation of a
right.
1–3c Equitable Remedies and Courts of Equity
A remedy is the means given to a party to enforce a right or to compensate for the violation of
a right. Example 1.7 Elena is injured because of Rowan’s wrongdoing. If Elena files a lawsuit
Focus Question 3 and is successful, a court can order Rowan to compensate Elena for the harm by paying her
What is the difference a certain amount. The compensation is Elena’s remedy. ■
between remedies at law and The kinds of remedies available in the early king’s courts of England were severely
remedies in equity? restricted. If one person wronged another, the king’s courts could award either money or
property, including land, as compensation. These courts became known as courts of law, and
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CHAPTER 1: Law and Legal Reasoning 13
the remedies were called remedies at law. Even though this system introduced uniformity
in the settling of disputes, when a person wanted a remedy other than property or economic
compensation, the courts of law could do nothing, so “no remedy, no right.”
The Merging of Law and Equity Today, in most states, the courts of law and equity have Know This
merged, and thus the distinction between the two courts has largely disappeared. A plaintiff Even though courts of
may now request both legal and equitable remedies in the same action, and the trial court
law and equity have
judge may grant either form—or both forms—of relief.
merged, the principles
The distinction between legal and equitable remedies remains significant, however,
because a court normally will grant an equitable remedy only when the remedy at law of equity still apply, and
(property or monetary damages) is inadequate. To request the proper remedy, a business- courts will not grant an
person (or her or his attorney) must know what remedies are available for the specific kinds equitable remedy unless
of harms suffered. Exhibit 1–2 summarizes the procedural differences (applicable in most the remedy at law is
states) between an action at law and an action in equity. inadequate.
Equitable Maxims Over time, the courts have developed a number of equitable maxims that Equitable Maxims General
provide guidance in deciding whether plaintiffs should be granted equitable relief. Because propositions or principles of law that
of their importance, both historically and in our judicial system today, these maxims are set have to do with fairness (equity).
forth in this chapter’s Landmark in the Law feature.
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14 UNIT ONE: The Legal Environment of Business
Natural Law The oldest school of The Natural Law School According to the natural law theory, a higher, or universal, law
legal thought, based on the belief exists that applies to all human beings. Each written law should reflect the principles inher-
that the legal system should reflect ent in natural law. If it does not, then it loses its legitimacy and need not be obeyed.
universal (“higher”) moral and ethical
The natural law tradition is one of the oldest and most significant schools of jurispru-
principles that are inherent in human
nature. dence. It dates back to the days of the Greek philosopher Aristotle (384–322 b.c.e.), who
distinguished between natural law and the laws governing a particular nation.
According to Aristotle, natural law applies universally to all humankind.
The notion that people have “natural rights” stems from the natural law tra-
dition. Those who claim that certain nations, such as China and North Korea,
are depriving many of their citizens of their human rights are implicitly appeal-
ing to a higher law that has universal applicability.
The question of the universality of basic human rights also comes into
play in the context of international business operations. For instance, U.S.
companies that have operations abroad often hire foreign workers as employ-
ees. Should the same laws that protect U.S. employees apply to these foreign
employees? This question is rooted implicitly in a concept of universal rights
Science History Images/Alamy Stock Photo
Legal Positivism Positive law, or national law, is the written law of a given
society at a particular point in time. In contrast to natural law, it applies only to
the citizens of that nation or society. Those who adhere to legal positivism believe
that there can be no higher law than a nation’s positive law.
According to the positivist school, there is no such thing as “natural rights.”
Rather, human rights exist solely because of laws. If the laws are not enforced,
What is the basic premise of Aristotle’s natural anarchy will result. Thus, whether a law is morally “bad” or “good” is irrele-
law theory? vant. The law is the law and must be obeyed until it is changed—in an orderly
manner through a legitimate lawmaking process. A judge who takes this view
Legal Positivism A school of legal will probably be more inclined to defer to an existing law than would a judge who adheres
thought centered on the assumption to the natural law tradition.
that there is no law higher than
the laws created by a national
The Historical School The historical school of legal thought emphasizes the evolutionary
government. Laws must be obeyed,
even if they are unjust, to prevent
process of law by concentrating on the origin and history of the legal system. This school
anarchy. looks to the past to discover what the principles of contemporary law should be. The legal
doctrines that have withstood the passage of time—those that have worked in the past—are
Historical School A school of deemed best suited for shaping present laws. Hence, law derives its legitimacy and author-
legal thought that looks to the past ity from adhering to the standards that historical development has shown to be workable.
to determine what the principles of
contemporary law should be.
Followers of the historical school are more likely than those of other schools to adhere
strictly to decisions made in past cases.
Legal Realism In the 1920s and 1930s, a number of jurists and scholars, known as legal
Legal Realism A school of legal realists, rebelled against the historical approach to law. Legal realism is based on the idea that
thought that holds that the law is only law is just one of many institutions in society and that it is shaped by social forces and needs.
one factor to be considered when
This school reasons that because the law is a human enterprise, judges should look beyond
deciding cases, and that social and
economic circumstances should also
the law and take social and economic realities into account when deciding cases.
be taken into account. Legal realists also believe that the law can never be applied with total uniformity. Given
that judges are human beings with unique experiences, personalities, value systems, and
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CHAPTER 1: Law and Legal Reasoning 15
intellects, different judges will obviously bring different reasoning processes to the same case.
Female judges, for instance, might be more inclined than male judges to consider whether a
decision might have a negative impact on the employment of women or minorities.
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16 UNIT ONE: The Legal Environment of Business
Cyberlaw An informal term used to between persons and their governments). Frequently, people use the term cyberlaw to refer
refer to all laws governing electronic to the emerging body of law that governs transactions conducted via the Internet, but
communications and transactions, cyberlaw is not really a classification of law. Rather, it is an informal term used to refer to
particularly those conducted via the
Internet.
both new laws and modifications of traditional legal principles that relate to the online
environment.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
CHAPTER 1: Law and Legal Reasoning 17
In contrast, international law applies to more than one nation. International law can be International Law Law that
defined as a body of written and unwritten laws observed by independent nations and gov- governs relations among nations.
erning the acts of individuals as well as governments. It is a mixture of rules and constraints
derived from a variety of sources, including the laws of individual nations, customs devel-
oped among nations, and international treaties and organizations.
The key difference between national law and international law is that government author-
ities can enforce national law. If a nation violates an international law, however, enforcement
is up to other countries or international organizations, which may or may not choose to
act. If persuasive tactics fail, the only option is to take coercive actions against the violating
nation. Coercive actions range from the severance of diplomatic relations and boycotts to
sanctions and, as a last resort, war.
Debate This
Under the doctrine of stare decisis, courts are obligated to follow the precedents established in their
jurisdiction unless there is a compelling reason not to do so. Should U.S. courts continue to adhere to this
common law principle, given that our government now regulates so many areas by statute?
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
18 UNIT ONE: The Legal Environment of Business
Key Terms
adjudicate 6 defendant 11 ordinance 5
administrative agency 6 dissenting opinion 27 per curiam opinion 27
administrative law 6 enabling legislation 6 persuasive authority 11
administrative law judge (ALJ) 8 equitable maxims 13 plaintiff 11
administrative process 7 historical school 14 plurality opinion 27
allege 12 international law 17 precedent 9
binding authority 9 interpretive rules 7 primary source of law 4
case law 8 jurisprudence 14 procedural law 15
case on point 12 law 2 remedy 12
citation 5 legal positivism 14 rulemaking 7
civil law 16 legal realism 14 secondary source of law 4
civil law system 16 legal reasoning 11 stare decisis 9
common law 9 legislative rules 7 statutory law 5
concurring opinion 27 liability 3 substantive law 15
constitutional law 4 majority opinion 27 uniform laws 5
criminal law 16 national law 16
cyberlaw 16 natural law 14
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
CHAPTER 1: Law and Legal Reasoning 19
4. Remedies—A remedy is the means by which a court enforces a right or compensates for a
violation of a right. Courts typically grant legal remedies (monetary damages or property) but may
also grant equitable remedies (specific performance, injunction, or rescission) when the legal
remedy is inadequate or unavailable.
5. Schools of legal thought—Judges’ decision making is influenced by their philosophy of law. The
following are four important schools of legal thought, or legal philosophies:
a. Natural law—One of the oldest and most significant schools of legal thought. Those who believe
in natural law hold that there is a universal law applicable to all human beings and that this law
is of a higher order than positive, or national, law.
b. Legal positivism—A school of legal thought centered on the assumption that there is no law
higher than the laws created by the government. Laws must be obeyed, even if they are unjust,
to prevent anarchy.
c. Historical school—A school of legal thought that stresses the evolutionary nature of law and
looks to doctrines that have withstood the passage of time for guidance in shaping present laws.
d. Legal realism—A school of legal thought that generally advocates a less abstract and more
realistic approach to the law. This approach takes into account customary practices and the
social and economic circumstances in which transactions take place.
Classifications of Law The law may be broken down according to several classification systems, such as substantive or
procedural law, federal or state law, and private or public law. Three broad classifications are civil and
criminal law, common law systems, and civil law systems, and national and international law. Cyberlaw
is not really a classification of law but a term that refers to the growing body of case and statutory law
that applies to Internet transactions.
Issue Spotters
1. The First Amendment to the U.S. Constitution provides protection for the free exercise of religion. A state legislature enacts a law that
outlaws all religions that do not derive from the Judeo-Christian tradition. Is this law valid within that state? Why or why not? (See
Sources of American Law.)
2. Apex Corporation learns that a federal administrative agency is considering a rule that will have a negative impact on the firm’s ability to
do business. Does the firm have any opportunity to express its opinion about the pending rule? Explain. (See Sources of American Law.)
—Check your answers to the Issue Spotters against the answers provided in Appendix D.
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Another random document with
no related content on Scribd:
ordres de l'amiral Keith, chef des diverses croisières de l'Océan. Ces ordres ne se
firent pas attendre, et le Bellérophon fut invité à venir jeter l'ancre dans la rade de
Plymouth. À peine s'y trouvait-il que deux frégates fortement
Arrivée à Plymouth.
armées vinrent se ranger sur ses flancs, et le placer ainsi sous
la garde de leurs canons. On vit plusieurs fonctionnaires anglais se succéder,
recevoir des communications du capitaine Maitland, lui en apporter, sans que rien
transpirât du sujet de leurs entretiens. L'amiral Keith se rendit à bord du
Bellérophon pour faire à Napoléon une visite de convenance, visite qui fut courte,
et pendant laquelle il ne prononça pas un mot qui eût trait aux intentions du
gouvernement britannique. Tandis que ce silence de sinistre
Fâcheux augures
dès qu'on touche augure régnait autour de l'illustre prisonnier, on voyait sur tous
au rivage les visages qu'on avait l'habitude de rencontrer sur le
d'Angleterre. Bellérophon, et notamment sur celui du capitaine Maitland,
l'embarras de gens qui avaient une nouvelle fâcheuse à
cacher, ou des promesses à retirer; et ce qui était plus inquiétant, ces mêmes gens
tout en ayant l'envie d'être aussi respectueux, n'osaient plus l'être. Survint dans le
moment le général Gourgaud, annonçant qu'il n'avait pu porter au prince régent la
lettre de Napoléon, et qu'il avait été obligé de la remettre à l'amiral Keith. C'étaient
là autant de signes fort peu rassurants.
Il fut profondément sensible néanmoins aux indignes détails ajoutés à cet arrêt
de détention perpétuelle prononcé contre lui. Il était trop clairvoyant pour ne pas
reconnaître que cette détention était pour l'Europe un droit et une nécessité, mais il
sentit vivement les humiliations gratuites par lesquelles on aggravait sa captivité,
comme de songer à lui ôter son épée, son titre souverain et quelques débris de son
naufrage. Il n'en dit rien, mais il résolut de ne point se prêter aux indignes
traitements qu'on voudrait lui infliger, dût-il être amené ainsi aux dernières
extrémités. Son premier projet avait été de prendre un de ces noms d'emprunt que
les princes adoptent quelquefois pour simplifier leurs relations. Ainsi il avait eu
l'idée de prendre le titre de colonel Muiron, en mémoire d'un brave officier tué au
pont d'Arcole en le couvrant de son corps. Mais dès qu'on lui contestait le titre que
la France lui avait donné, que l'Europe lui avait reconnu, que sa gloire avait
légitimé, il ne voulait point faciliter à ses ennemis la tâche de l'humilier, ni laisser
infirmer de son consentement le droit que la France avait eu de le choisir pour chef.
Il persista à se qualifier d'Empereur Napoléon. Quant à son épée, il était déterminé
à la passer au travers du corps de celui qui tenterait de la lui enlever.
Lorsqu'il revit ses compagnons d'infortune après
Choix des
compagnons d'exil ces communications, il leur parla avec calme, et Août 1815.
de Napoléon. les pressa instamment de consulter avant tout
leurs intérêts de famille et leurs affections dans le parti qu'ils
avaient à prendre. Il les trouva tous décidés à le suivre partout où on le
transporterait, et aux conditions qu'y mettrait la haine ombrageuse des vainqueurs
de Waterloo. Il regretta beaucoup l'exclusion prononcée contre les généraux
Lallemand et Savary, mais il n'y avait point à disputer. Il désigna le grand maréchal
Bertrand, le comte de Montholon et le général Gourgaud. Ces désignations avaient
épuisé son droit de choisir ses compagnons de captivité limités à trois. Il était
entendu que les femmes avec leurs enfants ne feraient pas nombre, qu'elles
pourraient accompagner leurs maris, et accroître ainsi la petite colonie qui allait
suivre Napoléon dans son exil. Cependant, parmi les personnages venus avec lui
en Angleterre s'en trouvait un auquel il tenait, bien qu'il le connût depuis peu de
temps, c'était le comte de Las Cases, homme instruit, de conversation agréable,
sachant bien l'anglais, ayant été jadis officier de marine et pouvant être fort utile au
delà des mers. Napoléon désirait beaucoup l'emmener à Sainte-Hélène, et lui était
prêt à suivre Napoléon en tous lieux. On profita de ce que les ordres britanniques
en limitant le nombre des compagnons d'exil de Napoléon, n'avaient parlé que des
militaires, pour admettre M. de Las Cases à titre d'employé civil. On accorda en
outre un médecin et douze domestiques. Ces détails une fois réglés, on disposa
tout pour le départ le plus prochain.
Tel est le lieu où Napoléon devait terminer sa vie. C'est toujours pour les
navigateurs, d'où qu'ils viennent, où qu'ils aillent, une joie d'arriver. Pour la
première fois peut-être ce sentiment ne fut point éprouvé à bord du
Northumberland, du moins parmi les illustres passagers qu'il venait de transporter.
Leur sentiment fut celui de prisonniers apercevant la porte de la prison qui va se
refermer à jamais sur eux. La population de l'île était tout entière sur le quai, et
aurait composé une foule si son nombre l'avait permis. Napoléon monta sur le
pont, et regarda tristement ce séjour abrupte; noirâtre, où il allait s'ensevelir tout
vivant. Il n'exprima aucun désir, et laissa le soin à l'amiral de prononcer sur l'instant
de sa mise à terre, et sur le lieu où il devait séjourner provisoirement. L'amiral se
hâta de quitter son vaisseau pour aller chercher un pied-à-terre où Napoléon pût
prendre gîte, en attendant qu'on eût préparé son établissement définitif. L'amiral
employa deux journées à cette recherche, et vint en s'excusant de ce retard
annoncer à Napoléon la découverte d'une maison petite mais suffisante, dans
laquelle il pourrait jouir immédiatement du plaisir d'être à terre.
Napoléon débarque
le 17 octobre à Le 17 octobre Napoléon quitta le Northumberland, fort regretté
Sainte-Hélène. de l'équipage, qu'il remercia des soins dont il avait été l'objet.
Arrivé à la petite maison que l'amiral lui avait choisie, il la
trouva tellement exposée aux regards des habitants qu'il jugea impossible d'y
rester plus d'une ou deux journées. L'amiral lui promit de s'occuper dès le
lendemain d'en chercher une mieux placée, et dans laquelle il serait garanti des
regards des curieux.
Certains juges ont blâmé Napoléon de sentir ces souffrances, ou de laisser voir
qu'il les sentait. Il est aisé de parler des maux d'autrui, et d'enseigner comment il
faudrait les supporter. Pour moi que la vue de la souffrance d'autrui affecte
profondément, je ne sais guère blâmer ceux qui souffrent, et je n'aurais pas le
courage de rechercher si tel jour, à telle heure, de nobles victimes, torturées par la
douleur, ont manqué de l'attitude impassible qu'on désirerait leur imposer. Je ne
sais pas de plus touchantes victimes que Pie VII, que Louis XVI, que Marie-
Antoinette, et il est tel instant que je voudrais supprimer de leur cruelle agonie. Le
corps humain n'est pas bon à voir dans les convulsions de la douleur physique.
L'âme humaine n'est pas meilleure à voir dans certains instants de la douleur
morale, et il faut jeter sur elle le voile d'une compassion respectueuse. Si Napoléon
eût été un anachorète chrétien, on aurait pu lui dire: Courbez
Mouvements
d'irritation dont il ne la tête sous le soufflet des bourreaux.—Mais cette âme
peut se défendre. indomptable à la fatigue, aux souffrances physiques, aux
dangers, tombée de si haut, frémissait sous les humiliations,
et il faut pardonner ces premiers tressaillements d'impatience à l'homme qui, ayant
vu pendant quinze ans les rois à ses pieds, était maintenant plongé dans leurs fers.
Ses compagnons eurent le tort de contribuer à l'irriter en lui
Ses plaintes et
celles de ses racontant comment ils étaient traités à James-Town. Surveillés
compagnons. dans leurs moindres mouvements, partout suivis d'un soldat,
ils éprouvaient des gênes insupportables, et se plaignirent
vivement à leur maître infortuné, qui fut affecté de leurs peines plus que des
siennes. Napoléon, ne se contenant plus, et répétant ce qu'il avait dit à lord Keith,
s'écria qu'on violait en lui le droit des gens et l'humanité; qu'il n'était pas prisonnier
de guerre, car il s'était volontairement confié aux Anglais après avoir fait à leur
générosité un appel dont ils n'étaient pas dignes; qu'il aurait pu se jeter sur la Loire,
y continuer la guerre, la rendre atroce, ou bien se livrer à son beau-père, à son
ancien ami l'empereur Alexandre, qui auraient bien été forcés par la loi du sang ou
par celle de l'honneur de le traiter avec égards; que les Anglais n'avaient donc pas
sur lui les droits qu'on a sur les prisonniers; que d'ailleurs ce droit cessait avec la
guerre, qu'enfin il y avait envers les prisonniers des ménagements mesurés à leur
rang, à leur situation, dont on ne s'écartait jamais. Napoléon, se rappelant à cette
occasion comment il avait agi autrefois avec l'empereur d'Autriche, avec le roi de
Prusse qu'il aurait pu détrôner, avec l'empereur de Russie qu'il avait pu faire
prisonnier à Austerlitz, et auxquels il avait épargné la plupart des conséquences de
leurs désastres, comparait amèrement leur conduite à la sienne, oubliant dans ces
plaintes éloquentes la véritable cause de traitements si différents, oubliant
qu'Alexandre, Frédéric-Guillaume, François II, lorsqu'il les traitait si bien, ne lui
inspiraient aucune crainte, tandis que lui, au contraire, tout vaincu qu'il était, faisait
peur au monde, qu'il devait par conséquent à son génie, et à l'abus de ce génie,
l'étrange forme de captivité à laquelle il était réduit. Après cet emportement qui
l'avait soulagé, il s'écria tout à coup: Du reste, pour moi, il ne m'appartient pas de
réclamer. Ma dignité me commande le silence, même au milieu des tourments,
mais vous à qui tant de réserve n'est pas commandée, plaignez-vous. Vous avez
des femmes, des enfants, qu'il est inhumain de faire souffrir de la sorte, et qui
motivent suffisamment toutes les réclamations que vous pourrez élever.—