978-0078023866 Chapter 4 Internet Exercise and Supplements Part 2

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Chapter 04 – The American Legal System

Answers to Questions—Part Two (p. 171)

1. Jurisdictional requirements serve a number of purposes. Among those are the following—the

a. No, because the summons was obtained by fraudulent means.

b. Yes, it would then be in personam jurisdiction.

3. The state argued, and the court agreed, that the various environmental groups did not have

Answers to Chapter Questions (p. 181)

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

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

b. A conclusion that can be drawn from this is that being born out of wedlock and raised in a

3. The court held that the suit was properly dismissed because, to prevail, plaintiff would have to

a. The primary practical objection is the due process argument that “reasonable control” is

difficult to identify/measure. Of course, some parents and others object that they do all they

b. Assistant City Attorney Crenna Brumwell: “If your child says they are going to a movie and

you’ve asked what time you expect them to be home, all you can do is take them at their

c. Students’ answers will vary. Some of them may say that this ordinance would help curb

crimes.

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Chapter 04 – The American Legal System

a. Students’ answers will vary. Some of them may say that she could show that she had met all

b. Students’ answers will vary. Some of them may say that this law suit would strain the

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

7. A 2010 Cornell University study concluded that physically unattractive criminal defendants are 22

percent more likely to be convicted and receive longer sentences than more attractive

defendants. The study found that jurors who reason in an emotional manner were harsher with

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

a. Students’ answers will vary. Some of them may say that that everyone is equal in the eyes of

the law. However, if a person can afford to have better legal representation then it is a

b. Students’ answers will vary. Some of them may say that the current nationwide legal services

program is not always sufficient to meet every citizen’s legal needs.

a. The Supreme Court did not go that far in the Powers v. Ohio case. However, it did find that a

white defendant had standing to object to the improper exclusion of a black juror through the

use of a peremptory challenge. “We conclude that a defendant in a criminal case can raise

b. In U.S. v. Bishop, the prosecutor used a peremptory challenge to exclude a black juror.

When challenged, the prosecutor “explained the challenge as based in part on the fact that

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Chapter 04 – The American Legal System

10.

a. He meant that a society confident of its future is not so insistent upon an immediate remedy

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

11.

a. Clients would not confide in their attorneys if they knew the information could be used

b. The students could have a discussion based on this question. “CH” offered this online

opinion: “I would spill the beans and accept the ‘punishment’ which would be much easier to

take than having to live with the knowledge that I was holding back facts that could free an

12.

a. Yes, they were found to be guilty and were sentenced to death. The court rejected

self-defense and necessity arguments. “But a man has no right to declare temptation to be

b. The students could have a discussion based on this question. Students are often particularly

provoked by the “lifeboat” case, The Queen v. Dudley Stephens. Should the instructor or the

13. The law to be applied in any diversity case is that of the state in which the court is sitting

(including the state’s conflict of law rules). The court’s reasoning is as follows:

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

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Chapter 04 – The American Legal System

15. No. eBay is a virtual forum facilitating the exchange of goods, but it is not a merchant selling the

16. Epstein suggests that the causes include the existence of a plethora of government regulations

17.

a. Pros include fairness and discouraging frivolous claims. Cons center on inhibiting people

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

18. The Second Circuit Court of Appeals acknowledged that it would have made sense for Deutsche

Bank to have explained the U-4 form to Gold and provide him with the NASD rules that were

Supplementary Materials

I. Critics (p. 155)

Criticism of lawyers and judicial systems is as ancient as law itself. Consider Marxist Peter Kropotkin’s

attack on humanity’s passive willingness to defer to authority:

[A] fresh law is looked upon as a remedy for evil. Instead of themselves altering what is

bad, people begin by demanding a law to alter it. If the road between two villages is

impassable, the peasant says: “There should be a law about parish roads.”

People are so perverted by an education due to which from infancy they seeks to kill the spirit

of revolt, and to develop that of submission to authority. People are so perverted by this

existence under the rule of a law which regulates every event in his or her life… that, if this

state of things continues, people shall lose all initiative, all habit of thinking for themselves.

Roger Baldwin, ed., Kropotkin’s Revolutionary Pamphlets, (New York: Vanguard Press, 1927), pp.

196-206, 212-18.

Addressing the same general topic, Professor Jerold Auerbach places the distrust of lawyers in

historical context:

It is astonishing that lawyers anywhere, no less in the United States, should ascend to

eminence, or even to conspicuousness. Hostility to the legal profession is as old as the

profession itself. The ancients believed that lawyers had a vested interest (their fees) in

manipulating or misinterpreting tribal custom and prophetic teaching. In early Greece,

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Chapter 04 – The American Legal System

republican Rome, and dynastic China, there were rules against the provision of paid legal

advice[.] Modern revolutionary movements… have sought to destroy the legal profession:

The French abolished the Order of Advocates and the Bolsheviks destroyed the Russian

Advokatura.

Jerold S. Auerbach, “A Plague of Lawyers,” Harper’s, October, 1976, pp. 37, 39-40.

II. Arbitration (p. 177)

One study by the Rand Corporation concluded that arbitration in complex commercial cases usually

saves companies money, but is not successful in saving time. The explanation: Cases headed for trial

are more frequently settled in advance than those bound for arbitration. Thus, the study calls into

question the value of arbitration as an efficiency measure. Of course, arbitration has other virtues

including the fact that it does permit a hearing, thus affording a satisfaction to the parties that is

missing in settlements.

On the average, the arbitrated cases studied required 285 days and cost $19,972 while the

“nonarbitrated” cases required 282 days and cost $25,047.

Arthur S. Hayes and Ann Hagedorn, “Arbitration Saves Money, but not Time,” The Wall Street Journal,

September 5, 1990, p. B9.

Supplementary Cases

I. Sherburne County Social Services v. Kennedy, 409 N.W. 2d 907 (Minn. App.

1987) (See Personal Jurisdiction, p. 157)

Syllabus

Mother brought a paternity case in her home state of Minnesota against the alleged father, a

resident of Montana. The alleged father (appellant) argued that Minnesota did not have in

personam jurisdiction over him to require him to defend a paternity suit in Minnesota. Both

parties agreed that, if appellant was the father, the act of conception had to have occurred in

Montana. Several months prior to the alleged conception date, appellant had been a resident

of Minnesota, but he had had no further contact with the state since that time. The Minnesota

appellate court found that, while the requirements of the Minnesota long-arm statute had been

met because the tortious act (paternity) caused injury (the mother’s suffering caused by

having to raise the child alone) in Minnesota, nevertheless appellant could not be sued in

Minnesota because doing so violated his due process rights. Basically, neither the quantity nor

quality of Kennedy’s contacts with Minnesota were sufficient to meet due process standards

for requiring him to come to Minnesota to defend the paternity action. Mother’s recourse was

to bring suit in Montana.

II. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987) (See Personal

Jurisdiction, p. 157)

Syllabus

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Chapter 04 – The American Legal System

This case presents the question whether the mere awareness on the part of a foreign

defendant that the components it manufactured, sold and delivered outside the United States

would reach the forum State in the stream of commerce constitutes “minimum contacts”

between the defendant and the forum State such that the exercise of jurisdiction “does not

offend ‘traditional notions of fair play and substantial justice.’”

On September 23, 1978, on a California highway, Gary Zurcher lost control of his Honda

motorcycle and collided with a tractor. Zurcher was severely injured and his passenger and

wife, Ruth Ann Moreno, was killed. In September, 1979, Zurcher filed a product liability action

in a California state court. He alleged the 1978 accident was caused by a sudden loss of air

and an explosion in the rear tire of the motorcycle and further alleged that the motorcycle tire,

tube and sealant were defective. Zurcher’s complaint named, among others, the Taiwanese

manufacturer of the tube. That company in turn filed a cross-complaint seeking indemnification

from Asahi Metal Industry Co., Ltd., the manufacturer of the tube’s valve assembly.

Asahi is a Japanese corporation. It manufactures tire valve assemblies in Japan and sells the

assemblies to (non-U.S.) tire manufacturers for use as components in finished tire tubes. The

company that sold the tire tube included in the manufacture of Zurcher’s Honda motorcycle

accounts for less than 2% of Asahi’s annual income and the tube company sells its finished

tubes throughout the world.

Appellant, Asahi, moved to be dismissed from the California lawsuit on the grounds that the

California court lacked personal jurisdiction over it. The issue was whether Asahi had sufficient

“minimum contacts” with California so that jurisdiction would satisfy the due process clause of

the Fourteenth Amendment. Asahi did no business in California directly. The Supreme Court

held that the California court did not have jurisdiction over Asahi. According to the Court “[t]he

‘substantial connection’ between the defendant and the forum State necessary for a finding of

minimum contacts must come about by an action of the defendant purposefully directed

toward the forum state.” This test was not met here since Asahi conducted no business in

California and did not otherwise purposefully avail itself of the benefits of California.

III. Republic of Bolivia v. Philip Morris Companies, 39 F. Supp. 2d 1008 (S.D.

Tex. 1999) (See Venue, p. 160)

Syllabus

Bolivia (as did a number of other countries) sought to sue numerous America tobacco

companies in the U.S. It started its suit in a Texas state trial court, but the tobacco companies

had it removed to this federal district court. Apparently on its own motion, the federal district

judge directed that the case be transferred to the District Court of the District of Columbia,

where it appears suits by other countries were being consolidated. In transferring the case, the

court questions (fairly humorously) why the case was filed in Galveston to begin with.

IV. Sierra Club v. Morton, 405 U.S. 727, 741 (1972) (See Standing to Sue, p. 161)

Syllabus

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Chapter 04 – The American Legal System

Petitioner, a membership corporation with “a special interest in the conservation and sound

maintenance of the national parks, game refuges, and forests of the country,” brought this suit

for a declaratory judgment and an injunction to restrain federal officials from approving an

extensive skiing development in the Mineral King Valley in the Sequoia National Forest.

Petitioner relies on Sec. 10 of the Administrative Procedure Act, which accords judicial review

to a “person suffering legal wrong because of agency action, or (who is) adversely affected or

aggrieved by agency action within the meaning of a relevant statute.” On the theory that this

was a “public” action involving questions as to the use of natural resources, petitioner did not

allege that the challenged development would affect the club or its members in their activities

or that they used Mineral King, but maintained that the project would adversely change the

area’s aesthetics and ecology. The District Court granted a preliminary injunction. The Court of

Appeals reversed, holding that the club lacked standing, and had not shown irreparable injury.

Held: A person has standing to seek judicial review under the Administrative Procedure Act

only if he can show that he himself has suffered or will suffer injury, whether economic or

otherwise. In this case, where petitioner asserted no individualized harm to itself or its

members, it lacked standing to maintain this action.

V. Woodruff v. Georgia State University, 304 S.E. 2d 697 (Ga. 1983) (See Motions

p. 165)

Syllabus

Student brought action against state university, university professors, and others, alleging libel

and slander, intentional infliction of mental distress, conspiracy in withholding

recommendations, negligent supervision of her graduate studies, breach of contract, and

constitutional violations. The Superior Court, Fulton County, Luther Alverson, J., granted

defendant’s motion for summary judgment, and student appealed. The Supreme Court,

Weltner, J., held that student’s suit did not present a justiciable controversy, because disputes

concerning academic decisions of a public educational institution are not justiciable

controversies. This judgment was affirmed by the Court.

VI. Kumho Tire Company v. Patrick Carmichael, 119 S. Ct. 1167 (1999) (see

Experts, p. 152; contrast this case with Nickles v. Schild, a state case in text, p.

168)

Syllabus

Plaintiffs suffered injuries, and one passenger was killed, when a tire on the used minivan they

were driving blew out. Plaintiffs sued the tire manufacturer and its distributor, claiming the tire

(which was well used) was defective. One of plaintiff’s key witnesses, Carlson, was an expert

in tire failure analysis, who concluded that a manufacturing design or defect caused the blow

out and, therefore, the accident. Kumho moved to have the testimony excluded, arguing that

Carlson’s methodology did not meet the federal rules of evidence standard as to reliability. The

trial court judge ruled in favor of Kumho. It doubted the reliability of Carlson’s methods

because it did not meet the reliability standards set out in Daubert including “testability,” “peer

review or publication,” “known or potential rate of error,” and “degree of acceptance within the

scientific community.” The 11th Circuit reversed and, here, the Supreme Court reversed again,

reinstating the trial judge’s decision. The Court found that trial courts have a basic gatekeeping

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Chapter 04 – The American Legal System

obligation as to all expert testimony to insure that it meets the requisite standard of reliability,

such as whether the tests used by the expert had been peer reviewed or published, what the

potential rate of error was, how well it is accepted in the relevant expert community. It

observed that there was no evidence that other experts use Carlson’s tests or that published

articles and papers support his tests.

VII. Kathryn Brennan v. Bally Total Fitness, 198 F. Supp. 2d 377 (S.D. N.Y. 2002)

(See ADR Assessed, p. 178)

Syllabus

Brennan sued her employer, Bally, for sexual harassment. Bally moved to dismiss and compel

arbitration, based on an agreement signed by Brennan after her sexual harassment claims

had been made. The 16-page, single-spaced agreement was presented to a group of

employees, which included Brennan, at an educational meeting about sexual harassment.

Employees were given no more than 15 minutes to review the document. The employees

were not told they could review it at home or with an attorney, when the document was

collected, each employee was asked publicly whether they had signed it and employees were

told they would not be promoted unless they signed it. The court found that the arbitration

agreement was unenforceable, both because Brennan had lacked a meaningful choice in

signing it and because the agreement contained terms unreasonably favorable to Bally.

Selected Bibliography

John R. Allison, “Five Ways to Keep Disputes Out of Court,” Harvard Business Review, Jan.-Feb.1990,

p. 166.

Scott Cawelti, “Lessons Learned From the O.J. Trials,” Waterloo-Cedar Falls Courier, Feb. 9, 1997, p.

D2.

Mike France, “On the Prowl for Victims,” Business Week, January 29, 2001, p. 122.

Stephanie B. Goldberg, “A More Perfect Union Part I: A Lawyer in Moscow,” ABA Journal 76, (October

1990),

p.158.

Wayne E. Green, “Bar Groups Take on Ambulance-Chasers,” The Wall Street Journal, September 28,

1988, p.

25.

Philip B. Heymann and Lance Liebman, The Social Responsibilities of Lawyers: Case Studies

(Westbury, N.Y.: Foundation Press, 1988).

Jack Kelley, “Mafia Has Death Grip on Russia,” USA Today, Nov. 4, 1996, p. 4A.

Richard Lacayo, “Tell It to the Rent-a-Judge,” Time, August 29, 1988, p. 50.

David Luban, Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988).

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Chapter 04 – The American Legal System

Patricia Manson, “Posner Points Out Personal Nature of Jurists’ Judgments,” Chicago Daily Law

Bulletin, May 24, 2001, p. 1.

Robert J. Nobile, “When Jury Duty Calls,” Personnel 67, No. 1, January 1990, p. 8.

Paul Reidinger, “Sue U—From Classroom to Courtroom,” ABA Journal 76, February 1990, p. 82.

Christopher Stone, Where the Law Ends: Social Control of Corporate Behavior (New York: Harper &

Row, 1976).

Christopher Stone, Should Trees Have Standing? 2d ed. (Portola Valley, CA: Tioga Publishing Co.,

1988).

Bruce Vielmetti, “New Trial Weapon: Prof Offers Glimpse Into Mind of Juries,” Waterloo Courier, Oct.

2, 1992.

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