978-0078023866 Chapter 4 Internet Exercise and Supplements Part 1

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Chapter 04 – The American Legal System

Internet Exercises and Supplements

Answer to Internet Exercise (p. 181)

1. Students’ answers will vary based on the state and the article that they select.

Student Projects

1. Find a report of a civil lawsuit where a corporation is one of the parties. Identify the parties to the

lawsuit, the type of court that is hearing the case, and the primary issue between the parties.

Identify the particular law that will determine the outcome of the lawsuit and explain the public

policy behind that law. Do you think it is a good law? Explain.

2. Find a report of a civil lawsuit where a corporation is one of the parties. Identify the parties to the

lawsuit, the type of court that is hearing the case and the primary issue between the parties. Now

find the homepage(s) of the corporation(s) involved in the suit. Does it say anything about the

lawsuit? If so, how does the information compare to the information in your news report?

Supplemental Web Addresses

http://www.iccwbo.org/home/menu_international_arbitration.asp (The International Chamber of

Commerce’s arbitration materials)

http://www.virtualchase.com/topics/startingpoints_legal.shtml (A site designed to teach individuals how

to do legal research)

Answers

Answer to ‘The Importance of Law to the Private Enterprise System’ Question

(p. 141)

1. Students’ answers will vary. Taxes are more predictable, and policies are more investor friendly in

Answer to Question following ‘Justice’ (p. 142)

1. Students’ answers will vary. One commentator said that as between the two parties, a young girl

Answers to ‘Cyberbullying’ Questions (p. 143)

1. Students’ answers will vary. Some of them may say that the Tyler Clementi Higher Education Act

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Chapter 04 – The American Legal System

2. Students’ answers will vary. Some of them may agree saying that there is no other way to stop

3. Students’ answers will vary. Some of them may feel that the sentence was fair. Some others may

Answers to ‘Miranda Warnings’ Questions (p. 151)

1. & 2. Students’ answers will vary. One analysis of the rulings is as follows—“The high court has

made clear that it’s not going to eliminate the requirement that police officers give suspects a

Answers to Practicing Ethics: ‘“Stand Your Ground” on a Slippery Slope?’ (p.

151)

1. Students’ answers will vary. This law when adopted changed people’s understanding of what

a. Students’ answers will vary. However, supporters might say that the castle doctrine

b. Students’ answers will vary. Some of them may say that though it is unfair it is an appropriate

application of the castle doctrine. “You don’t have to claim that you were afraid for your life,”

Answer to ‘Practicing Ethics: Private Law for Walmart’ Question (p. 174)

1. One can argue that emerging private law systems may fill regulatory gaps. However, aggressively

Answer to ‘Practicing Ethics: Declining Access to Lawyers?’ Question (p. 175)

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Chapter 04 – The American Legal System

1. Students’ answers will vary. The Los Angeles Times reports that the Orange County, California

legal aid hotline received 34,000 calls in 2008 with the waiting time during the year increasing

from eight minutes to as much as 45 minutes. New York City’s Legal Aid Society can help only

Improving access to lawyers might also be improved by “unbundling” legal services. Forty-one

Cases and Answers

Nichols v. Niesen, 746 N.W.2d 220 (Wisc. S. Ct. 2008) (p. 145)

Syllabus

The Nichols were injured when their vehicle was struck by another vehicle being driven by Carr, an

underage high school student who had been drinking at a party of high school students held at the

Niesens’ home. The Wisconsin Supreme Court held that based on public policy grounds a claim for

common-law negligence could not be maintained against the Niesens. Although they allegedly were

aware that there was a party of high school students where alcohol was consumed, they did not

provide the alcohol, nor did they know or should have known that Carr was intoxicated or that she was

not able to drive her vehicle safely at the time of the accident.

Answers to ‘Nichols v. Niesen’ Questions (p. 148)

1. “[T]he Nichols claim that the Niesens’ conduct was negligent, and that it was reasonably

a. The Wisconsin Supreme Court ruled, on public policy grounds, that a common law

negligence claim against social hosts, such as the Niesens, cannot be maintained because

b. A commentary in the Wisconsin Lawyer is as follows—“The courts that have considered

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Chapter 04 – The American Legal System

3. U.S. Circuit Court Judge Richard Posner, in his blog, argued that social host liability may

sometimes be useful because the type of person who gets drunk and causes accidents is unlikely

4. The students could have a discussion based on this question. The Michigan appeals court

affirmed the decision. Serving alcohol to a minor is a violation of state law and creates a

5. The students could have a discussion based on this question. The court held that the three

friends were not Bhoge’s social hosts. The court noted the requirement for social host liability that

Arnold Schwarzenegger v. Fred Martin Motor Company, 374 F.3d 797 (9th Cir.

2004) (p. 157)

Syllabus

An Ohio car dealership ran a series of five full-page advertisements in a locally-circulated Ohio

newspaper of Arnold Schwarzenegger, an internationally-known movie star (who is at this writing and

at the time of the appellate court decision, Governor of California. Each advertisement included a

small photograph of the movie star, portrayed as the “Terminator,” without his permission. The movie

star alleged that the unauthorized uses of his image infringed his right of publicity. The federal district

court dismissed the complaint for lack of personal jurisdiction, and the Ninth Circuit Court of Appeals

affirmed. Schwarzenegger asserted general personal jurisdiction in that the dealer purchased

Asian-made automobiles that were imported by California entities, retained the services of California

direct-mail marketing and sale training companies, and maintained an accessible Internet website. The

court found that these contacts fell short of the required continuous and systematic contacts. Although

the movie star made out a prima facie case that the dealer committed intentional acts that might have

caused harm to the movie star in California for purposes of specific jurisdiction, the court found that

the movie star failed to make out a prima facie case that the dealer expressly aimed its acts at

California rather than Ohio.

Answers to ‘Arnold Schwarzenegger v. Fred Martin Motor Company’ Questions (p. 160)

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Chapter 04 – The American Legal System

1. Schwarzenegger claimed that the unauthorized use of his photo infringed his right of publicity. He

2. Schwarzenegger was unable to establish either general or specific personal jurisdiction over Fred

Martin in California. Continuous and systematic general business contacts (approximating

a. Students’ answers will vary. Nicastro sued for product liability.

b. Nicastro sued J. McIntyre for product liability in the New Jersey state court. The trial court’s

a. A constitutional argument the defendants made was that since they were residents of

b. Following Florida’s long arm statute the franchisees were subject to personal jurisdiction

Mayer v. Bill Belichick; The New England Patriots; National Football League,

605 F.3d 223 (3d Cir. 2010); Cert. Den. 2011 U.S. LEXIS 2027

Syllabus

In an episode popularly known as “Spygate,” an employee of the New England Patriots National

Football League team was caught videotaping New York Jets’ sideline signals, in violation of NFL

rules, during a 2007 game with the Jets. The taping was later discovered to have been part of an illicit

taping program that reportedly had been ongoing since the 2000 season. The NFL penalized the

Patriots and their coach, Bill Belichick. Mayer sued on behalf of himself and a class of Jets season

ticketholders claiming the improper conduct violated the contractual expectations and rights of the

ticketholders who had paid to observe an honest football game played in conformance with the rules.

Mayer lost at trial where the federal district court ruled that he had failed to demonstrate an actionable

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Chapter 04 – The American Legal System

injury; that is, he was unable to show that he had standing to sue. The appellate court agreed, holding

that Mayer possessed nothing more than a contractual right to a seat from which to watch an NFL

game between two particular teams, and this right was clearly honored.

Answers to ‘Mayer v. Bill Belichi’ Questions (p. 163)

a. Formally, Mayer lost because he could not establish standing to sue; in this instance, he

“suffered no cognizable injury to a legally protected interest.” Essentially, Mayer received

b. Students’ answers will vary.

2. The Court speculated that claims might legitimately arise when games are cancelled, when

3. The Court said: “At the very least, a ruling in favor of Mayer could lead to other disappointed fans

filing lawsuits because of ‘a blown call’ that apparently caused their team to lose or any number of

Minichiello v. Supper Club, 296 A.D. 2d 350 (S. Ct. N.Y., App. Div., 1st Dept.

2002) (p. 167)

Syllabus

The plaintiff alleged that he was verbally and physically abused by the defendants (his

employer, one of its partners, its general manager and an independent consultant) because of

his sexual orientation and then wrongfully discharged. The jury found for the plaintiff and made

monetary awards for lost wages, emotional distress, and punitive damages totaling nearly $20

million. The defendants contended that the damages awarded were so excessive as to be a

result of passion and prejudice borne of the plaintiff’s counsel’s misconduct and judicial error.

Specifically they argued that the counsel made inappropriate remarks and presented highly

prejudicial testimony that had little probative value. They further objected to the trial judge’s

refusal to allow inappropriate testimony and various rulings that would have mitigated the

impact of the plaintiff’s prejudicial testimony. Finally, they objected to demeaning comments

from the judge in the presence of the jury. This court reversed and remanded for a new trial.

Answers to ‘Minichiello v. Supper Club’ Questions (p. 167)

a. The appeals court concluded that the trial court’s decision was “meaningless” because the

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Chapter 04 – The American Legal System

b. The case was remanded to “a different justice” because the original trial court judge, or

2. No. The appeals court sent the case back to the trial level to be re-tried in an appropriate judicial

3. The judge allowed the plaintiff’s counsel to make prejudicial remarks and to call witnesses who

gave prejudicial testimony, largely without probative value. The judge also erred in—refusing to

Nickles v. Schild, 617 N.W. 2d 659 (S.D. S.Ct. 2000) (p. 168)

Syllabus

Nickles and Schild, both minors, were playing golf. On his third practice swing, Schild hit

Nickles in the head, fracturing his skull and permanently injuring his left eye. At trial, Schild

called Boldus, the golf professional at the golf course, as an expert witness. Boldus was asked

whether, as a golf professional, he had “formed any opinions as to what had happened in this

case?” Boldus proceeded to testify that “somehow Mark Nickles had moved in the way of the

swing and got hit.” He further testified that a golfer’s duty is to check what’s around before

starting his preshot routine; but once one begins his practice swings, it’s the duty of others to

stay out of the way. The court affirmed the lower court’s admission of the testimony, under an

abuse of discretion standard of review, stating that Boldus did not testify to the ultimate issue

of negligence. The dissent disagreed, arguing that Boldus was in essence testifying as a fact

witness, when he was not present and could not know what had actually happened.

Answers to ‘Nickles v. Schild’ Questions (p. 170)

1. Nickles’ objections to the expert, Boldus’, testimony was that Boldus did not have the training to

2. Boldus, an expert witness, was actually testifying about matters of fact. Since he was not present

3. The students could have a discussion based on this question.

4. No. Although the court said that usually a layperson is not permitted to testify regarding the cause

Lhotka v. Geographic Expeditions 181 Cal. App. 4th 816 (2010) (Petition for

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Chapter 04 – The American Legal System

review denied Lhotka v. Geographic Expeditions, 2010 Cal. LEXIS 3320 (Cal. S.

Ct.) (p. 179)

Syllabus

Lhotka died while on a Mt. Kilimanjaro hiking expedition arranged by Geographic Expeditions (GeoEx).

In the subsequent wrongful death action, GeoEx moved to compel arbitration. The California Court of

Appeal held that the arbitration provision was both procedurally and substantively unconscionable and

therefore unenforceable. Under the arbitration clause which Lhotka had no opportunity to bargain,

claims had to be brought in San Francisco where GeoEx was based, regardless of where the plaintiff

may live, and damages were limited to the cost of the expedition.

Answers to ‘Lhotka v. Geographic Expeditions’ Questions (p. 180)

1. The arbitration agreement was unconscionable because it failed both the procedural and

substantive tests. The arbitration agreement was oppressive because meaningful bargaining and

negotiation were precluded such that a meaningful choice did not exist. Thus the agreement was

2. The procedural element requires oppression or surprise. Oppression involves lack of negotiation

3. While the appellate court upheld the trial court’s findings that neither David nor his attorney had

4. The students could have a discussion based on this question. An interesting exercise to conduct

may be to ask students if they have ever signed an arbitration clause in employment. If they do

5. The students could have a discussion based on this question.

Answers to Questions—Part One (p. 152)

a. The students could have a discussion based on this question.

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Chapter 04 – The American Legal System

b. Rauch points to codifying assisted suicide as a replacement for the quiet understanding

between doctors, patients and families that often allowed those suffering hopelessly to die.

c. The students could have a discussion based on this question.

2 The students could have a discussion based on this question.

a. Arguably, legislation of this kind violates free expression and privacy rights. Of course, the

b. Perhaps legal intervention would be appropriate only in instances of actual threats or where

a. Defendants’ lawyers would raise various constitutional arguments (depending upon the

punishment) including: Free speech, freedom of association, and cruel and unusual

punishment. Critics are alarmed by the following trend:

b. The students could have a discussion based on this question. In Florida, some drunken

driving offenders have been required to display “Drunken Driver” bumper stickers on their

cars.

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