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Chapter 01 - The Nature of Law
1-1
CHAPTER 01
THE NATURE OF LAW
I. OBJECTIVES:
As its title suggests, this chapter seeks to acquaint students with the general nature of law. (See
also the Learning Objectives added to the text for the 16th edition.) The chapter does this by: (1)
describing the different types of law; (2) examining legal philosophy or jurisprudence; (3)
sketching some of law's functions; and (4) discussing legal reasoning. The chapter’s content
maximizes instructor discretion by keeping these four subjects as distinct from each other as
possible. As a result, you may feel you do not need to teach or assign certain parts of the chapter.
The material on the types of law, however, is basic material that any instructor probably would
want to present or assign.
II. ANSWERS TO INTRODUCTORY PROBLEM:
III. SUGGESTIONS FOR LECTURE PREPARATION:
A. Types of Law
1. The material in this section can be viewed as one response to the question: "What is
law?" The section answers this question by listing and describing the kinds of rules that
2. We do not use the term "sources of law" to identify this material because in ordinary
language the things described are law rather than sources of law. A statute, for instance,
is colloquially referred to as a law, and the legislature is ordinarily regarded as its source.
3. Provide students an overview (including examples) of each of the types of law outlined in
the text. Keep in mind the following:
Chapter 01 - The Nature of Law
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b. Note the role played by courts—most notably the Supreme Court—in interpreting the
U.S. Constitution. Comment on Presidents’ attempts to shape the judiciary through
appointments (subject to Senate confirmation) to the federal district courts, courts of
Blackmun, Stevens, and Souter would be examples of the latter.
c. The material on uniform acts is included here because students will so often
encounter uniform acts throughout the text. Of course, you should emphasize that
d. Emphasize that common law applies only when there is no other applicable type of
law and that statutes have a controlling effect with regard to the common law.
Therefore, Congress or a state legislature may enact a statute that abolishes or
addition, see Problem #4. Note, also, that a legislature may choose to enact a statute
that codifies what formerly was only a common law rule.
e. Price v. High Pointe Oil Company, Inc. (p. 4): High Pointe Oil Company
erroneously filled Beckie Price’s basement with 400 gallons of oil, which destroyed
her house and all of her personal belongings. The oil came in through an “oil fill
pipe” that used to lead to an oil furnace in Price’s basement. A year prior, however,
decide whether to adopt a new common law rule to allow the recovery of
noneconomic damages for the negligent destruction of real property. It declined to
do so.
Points for Discussion: Have a student summarize the basic facts and the
procedural history of the case. Ask the students why the court begins its discussion
with the following statement: “[a]bsent any relevant statute, the answer to that
question [whether noneconomic damages are recoverable for the negligent
destruction of real property] is a matter of common law.” (This may be a good way to
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For instructors who cover the common law and case law reasoning in the same
f. The text's statement that, as a general mater, common law exists only at the state
level implicitly recognizes the Supreme Court's decision in Erie R.R. v. Tompkins,
g. Some discussion of the Restatements is included in Chapter 1 for the same reason
that the chapter discusses uniform acts. References to the Restatements appear
h. Note that equity isn’t really a separate body of law any longer but that equitable
remedies (injunctions, etc.) remain very important instruments that courts frequently
employ.
i. In the text, the term delegation is used to refer only to transfers of power made by a
j. In discussing administrative regulations and decisions, note the political debates that
often arise regarding whether we have too much, too little, or about the right amount
k. Note the priority rules that apply only when the different types of law conflict.
Further note, as illustrated by the following Advance Dental Care case, that courts
will avoid interpreting the law to create such conflicts when possible.
l. Advance Dental Care, Inc. v. SunTrust Bank (p. 8): The Federal District Court for the
District of Maryland determined that the Maryland U.C.C. section 3-420, which
decide whether the remaining claim, dealing with conversion, displaced the common
law claim.
Points for Discussion: Students may need a bit of coaching on the language in
this case, including who is the payee (Advance Dental) and drawer (the insurance
Note for students that a primary concern is whether displacement of the common
law remedy would leave a plaintiff if an adequate statutory remedy. It would in this
Chapter 01 - The Nature of Law
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case, as opposed to cases where the drawer of the check is harmed when a bank
negligently honors a fraudulently endorsed check.
Ask students what is the relevance of U.C.C. section 1-103(b)’s “particular
provisions” language. (Because the U.C.C. does not expressly displace the common
law in total, the court must look to whether the particular conversion provision
based on the plaintiff’s own negligence.) Explain that typically the courts would let a
somewhat related claim under common law sit alongside a statutory claim that does
require that the statute displace the common law.
m. Briefly discuss the classifications of law identified in the text and give examples.
B. Jurisprudence
2. The materials in the jurisprudence section can be regarded as another set of answers to
continue, the various attempted general definitions of law have been grouped into
3. Regarding legal positivism:
a. Emphasize the basic idea that positivists regard law as the command of a political
of society's ultimate political authority, or sovereign. On this view, the different
kinds of positive law are valid because the sovereign has delegated some of its
c. Note how either positivist definition of law dovetails with the general positivist
position that law and morality are separate and distinct things. A command as such
and what the consequences of disobeying them will be.
d. Emphasize the positivist tendency to say that validly enacted positive laws should be
Chapter 01 - The Nature of Law
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
enforced and obeyed, just or not. This is only a tendency, for many positivists say
that the competing claims of law and morality must somehow be weighed against
each other.
4. Regarding natural law:
a. Emphasize the basic idea underlying almost every system of natural law: that there is
authority that do not offend the higher law. An alternative formulation is to say that
to be law, a positive law must actually be good. Some positive laws (e.g., whether to
supposedly is no duty to obey such positive laws. In reality, however, as the Lynch
case (see Problem #3) demonstrates, no natural law “defense” is recognized in court.
influence their application of the law.
d. Stress the ways in which natural law and legal positivism differ. The two key
course, natural law thinkers can counterattack by saying that the positivist position
requires us to obey any validly enacted positive law, no matter how unjust.
5. Regarding American Legal Realism:
a. The most important thing to emphasize is the characteristic legal realist distinction
speed limit is probably somewhere between 60 and 65 mph). Also, see Problem #7.
b. Unlike natural law and legal positivism, legal realism has relatively little to say about
that this violates the rule of law. But if this belief can be undermined by denigrating
the importance of "book law" and by showing that decisions ostensibly so based
source are these to be derived? Does legal realism itself provide moral criteria? To
Chapter 01 - The Nature of Law
1-6
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
the author of this chapter, the answers to these questions are "No," "Unclear," and
"No," respectively. Occasionally, it seems that the realists naively see moral
questions as having obvious answers and as being easily resolved.
influence lingers.
6. Regarding sociological jurisprudence:
a. Stress that "sociological jurisprudence" is an umbrella term uniting a wide range of
b. Note how sociological jurisprudence puts the positivist conception of law in a new
light. Rather than seeing law as simply the will of a political authority, we now have
c. Stress how sociological jurisprudence differs from natural law. Sociological
jurisprudence's treatment of values generally takes this form: "Society X emphasizes
quotation in the text. Arguably, the Supreme Court has taken this approach at
various points in its history--during the 1970s, for example, in the abortion, teenage
7. Problem #7 might be used as a general review of the four schools. The Ethics in Action
Chapter 4.
8. Briefly note the other schools of jurisprudence--or ways of viewing law--described at the
C. The Functions of Law: Material of this kind has long appeared in this text in one form or
D. Legal Reasoning
1. In emphasizing the importance of legal reasoning, you might stress that: (a) the subject
reasoning discussed in the chapter are what the last question in the chapter’s opening
vignette contemplates.
2. With regard to case law reasoning:
Chapter 01 - The Nature of Law
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a. Discuss the doctrine of stare decisis and what it means to distinguish a prior case.
Elaborate on the elusive difference between a good and a bad distinction. The text’s
b. Hagan v. Coca-Cola Bottling Co. (p. 14): The Florida Supreme Court holds that
when a person’s ingestion of a contaminated beverage produces emotional distress,
damages for that distress are recoverable in a negligence action even if there was no
Points for Discussion: Note that in declining to abolish the physical injury/impact
requirement for all negligent infliction of emotional distress cases, the court avoids
ruling on an issue it did not need to address in order to decide the case before it.
experience emotional distress upon discovery of the contamination, and that we don’t
need the physical injury/impact requirement as a check on whether the claimed
emotional harm was legitimate? Note the court’s reliance on a similar case decided
c. For a classic illustration of case law reasoning, instructors might discuss with
students the case of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. Ct. App.
1916).
3. With regard to statutory interpretation:
a. You might begin by suggesting why, at first glance, statutory interpretation seems to
b. Students may ask which technique takes priority when the various canons of statutory
interpretation actually or seemingly conflict. Emphasize that no single technique
to illustrate how judges tend to use the various techniques for various purposes, for
