Chapter 1
INTRODUCTION TO LAW
Suggested Additional Assignments
Research
Students should search a newspaper other online news source and find ten articles dealing with legal
issues. The articles might refer to contract disputes, negligence suits, international trade agreements,
statutory debates in Congress, environmental conflicts, employment issues, and so on. Make the search
competitive—time how quickly students can find ten articles, or see who can find the most articles in two
minutes. Students should select an article that interests them and be prepared to discuss it.
Poll
At the beginning of the course, it may be useful to get a feel for student attitudes about law and lawyers.
The instructor might copy and distribute the following poll on the first day, have students collate the
responses, and chart the results on the board as a prelude to discussion:
Strongly
Agree:
54
Neutral:
3 2
Strongly
Disagree:
1
1. A system of laws is essential in a
democratic society.
2. The American legal system is one of the
best in the world.
3. Lawyers are among the most dishonest
people in the United States.
4. Lawyers are paid too much.
5. Being on a jury is a waste of time.
6. Juries frequently award absurdly high
judgments.
7. It is fairly easy to manipulate the legal
system.
8. The legal system often abuses large
corporations.
9. Other nations do a better job than the
United States of resolving disputes.
10. The typical business executive has more
integrity than the average lawyer.
Chapter Overview
Chapter Theme
This book presents practical legal principles are practical. Neither the book nor the course is a theoretical
exercise. The law will affect students, regardless of their careers, whether they want it to or not. The more
students understand the law, the more they can use it productively. This chapter presents the role of law in
society, the origin, sources, and classifications of law, and introduces case analysis.
1
Approaching Law
Whether teaching in an undergraduate or MBA program students generally fall into one of four
categories: (1) those who do not intend law as a career but approach the material with an open mind; (2)
those in whom the course kindles a strong interest in law, who for the first time consider law as a career;
(3) those who enter the course with a strong interest in law and plan to attend law school; and (4) those
who are in the course only because their program requires it. The instructor’s job is to try to engage
students in all four categories. Students in categories (2) and (3) may be more willing to explore the
nuances of legal principles and see connections between legal topics. Students in categories (1) and (4)
may respond most favorably to practical applications of the law, such as understanding the law governing
employment or landlord/tenant relationships.
Experience with Lawyers
If one is teaching graduate students or others who have actual business experience working with lawyers,
it can be an excellent introduction to the course to elicit the pros and cons of those experiences. One fun
way to do so is to ask students “why lawyers are great” and “why lawyers are frustrating.” Typical
reasons given for “why lawyers are great”: “they help me avoid getting into trouble”; “they help to get me
out of trouble”; and, “I can blame things on them.” Typical reasons given for “why lawyers are
frustrating”: “they are expensive”; “they make everything too complicated”; “they are slow”; “they don’t
respond to my questions”; “they tell me what I don’t want to hear”; and, “they don’t know how to give
“yes or no” answers.”
The Role of Law in Society
Power
Nearly everything we do every day is somehow affected by laws. At work, employment law and contract
law issues control how many hours we can work, conditions of the work environment, and even matters
of ownership of our ideas. In our leisure time, we deal with the law through banking, copyright
protections, and contracts (remember that gym membership contract you signed?)
Importance
A society cannot function without laws. Though many patterns have existed, throughout history, no
society we know of has existed without some kind of laws.
Fascination
Because law is so powerful and pervasive, humans tend to be fascinated with it. Americans have been
labeled as “sue-happy” because we tend to expect the courts to solve many problems. We are also
enthralled with watching high-profile court cases through television coverage. The O.J. Simpson murder
trial in 1995 was one of the most heavily viewed events in the history of television. The 2011 trial of
Casey Anthony is a more recent example of this fascination.
Origins of Our Law
U.S. law has English roots, but has been influenced by many different societies. The law also grows and
adapts to the changing needs of a changing society.
Law balances the need for predictability with the need for change. Students should consider the values
served by precedent and stare decisis in their own lives and the circumstances under which a court should
be free to modify or ignore precedent. For example, students may depend upon contract law to prevent a
landlord from raising their rent, upon landlord-tenant law to ensure a habitable apartment, upon consumer
protection law to protect them from unfair retail practices, and upon employment law to protect them
from discrimination and sexual harassment in the workplace. If the common law changed with every
lawsuit, no one could conduct business with certainty.
Case: Oculist’s Case1
Facts: The defendant, attempting to heal the plaintiff, left him blind in one eye. The plaintiff has sued in
trespass, a forerunner of today’s tort action. The defendant made a procedural argument, claiming that the
plaintiff should have brought an action of covenant.
Issues: Did the plaintiff bring the wrong type of suit? Assuming the defendant’s care was defective, could
he be liable in any type of action?
Holding: The court ignores the procedural point and reaches the merits. It holds that because the plaintiff
voluntarily submitted himself to the defendant’s care, the latter cannot be liable, even if his conduct
caused the harm. The court distinguishes a deliberate attack, which would be actionable, from this
accidental harm, where it finds no liability. More importantly, the court bases its judgment on a previous
medical case involving accidental death. That case was dismissed, so this one should be dismissed as
well: precedent begins to take hold.
Question: What is a procedural argument?
Answer: A procedural argument focuses on how a dispute should be resolved. In this case, the lawyer
is arguing that the court should not even hear the case because the plaintiff has filed the wrong type of
suit.
Question: Why did the defendant’s attorney make a procedural argument?
Answer: To avoid reaching the merits. The defendant may or may not be able to show that he
Question: Is it good to allow procedural arguments?
Answer: Some procedural arguments are undoubtedly useful. An assertion that a federal court lacks
jurisdiction ought to be resolved before trial, as should an argument that the defendant never received
Sources of Contemporary Law
United States Constitution
The supreme law of the land, the U.S. Constitution establishes the federal government and distributes
powers among the federal and state governments and individual citizens. It also creates a system of
checks and balances among the branches.
Branches of Government
Legislative power is the ability to create new laws; it is balanced by the executive power to veto and the
judicial power to interpret and determine validity.
Executive power is the ability to enforce laws; it is balanced by the legislative power to override a veto
and to impeach and the judicial power to interpret.
Judicial power is the power to interpret statutes in light of the provisions of the Constitution; it is
balanced by the executive power to appoint justices and the legislative power to approve justice
nominees. Congress can also amend the Constitution with the approval of the states.
1 LI MS. Hale 137 (1), fo. 150, Nottingham, 1329.
Fundamental Rights
The Constitution also grants many of our most basic liberties. For the most part, they are found in the
amendments to the Constitution.
Statutes
The Constitution gives to the Congress the power to pass laws on various subjects. A proposed law is
called a bill; a bill that has become law is called a statute.
Common Law
The collective body of court decisions throughout history comprises the common law. Judges of all courts
below the Supreme Court will refer to previous cases (called precedent) to rule on present cases. The
principle that precedent is binding on later cases is called stare decisis, which means, “let the decision
stand.”
Court Orders
Sometimes judges issue court orders on a particular person or entity. This may be an order to do
something or an order to refrain from some action.
Administrative Law
Administrative agencies are created by Congress or by an order of the President. Their purpose is to carry
out the day-to-day work of enforcing the statutes passed by Congress. Agencies have the power to create
regulations, which are as binding as laws.
Treaties
The President may make treaties (agreements) with foreign nations, but these treaties must be ratified by a
2/3 vote of the US Senate. After ratification, treaties are binding on all citizens.
classification
Criminal and Civil Law
Most non-lawyers experience criminal law in the media, but most lawyers practice civil law. Civil law
does not involve guilt or punishment, two legal concepts with which students are likely most familiar.
Correct terminology is important—a court does not find a civil defendant “guilty” of negligence or breach
of contract, it finds him “liable” for negligence or breach of contract. Chapter 7 addresses criminal law.
Law and Morality
Law and morality are clearly different yet obviously related. How should a citizen respond to a law that
seems immoral? Consider the Proposition 187 controversy described in the chapter.
General Questions: What are students’ reactions to the controversy surrounding Proposition 187 in
California? A high school principal refused to comply with the law because he considered it unethical.
The text supplies several letters responding to the principal’s statements. With which letters do
students agree, and why?
Question: Those who believe that the principal has the right to ignore a law he regards as unethical
should consider this: Suppose a state law requires a home seller to notify any potential buyer of
serious hidden defects, such as a cracked foundation. A seller regards the law as an immoral
interference with his right to dispose of property. Must he obey the law?
Answer: Perhaps citizens have a somewhat greater right to make moral decisions concerning laws
Question: Those who believe that the principal has no right to ignore a law he regards as unethical
should consider whether there are any laws that they would not obey. Ask them to imagine being a
school principal in the South in the early 1950s: would they have enforced racial segregation because
it was the law?
Answer: Racial segregation had no legitimate purpose, whereas supporters of Proposition 187 say
Jurisprudence
“The foundation of our national policy will be laid in the pure and immutable principles of private
morality. There is no truth more thoroughly established, than that there exists in the economy and course
of nature, an indissoluble union between virtue and happiness.” –George Washington, First Inaugural
Address, 1789.
Some claim that the American legal system has taken us too far from Washington’s ideal world, arguing
that we place too many moral issues in the hands of judges and juries, that we allow government
regulators to control too many matters. They argue that only by limiting the roles of government and the
courts can we permit true morality to flourish. These critics would like to see most if not all federal
regulatory agencies disbanded, permitting “private morality” once more to rule.
Others strongly disagree, claiming that governmental regulation forces recalcitrant individuals and
companies to follow the common morality, something they would not do unless faced with potential legal
penalties. Would we be comfortable shopping if meat were not inspected? Should new drugs simply be
tested on unwitting consumers, rather than subjected to FDA review? Are race and sex discrimination so
inconsequential that we can permit them to go unregulated? Should companies be free to dump toxic
waste wherever they want? The answers, claim many, are too obvious to need stating.
Theories of Jurisprudence
Ask students to identify examples of legal positivism, natural law, and legal realism from their own
experience. They may find that they do not ascribe consistently to only one of these theories. For
example, many undergraduate students are legal positivists with regard to, say, a landlord’s obligation to
maintain minimum levels of habitability required by the state sanitary code, but not with regard to laws
prohibiting persons under 21 from purchasing alcohol. Students from different socio-economic classes
may disagree as to the legality of racial profiling by police. By exploring examples such as these, students
gain deeper understanding of the meaning of the theories of jurisprudence and may begin to understand
their own views of the law more objectively.
SUMMARY OF JURISPRUDENCE
Legal Positivism Law is what the sovereign says.
Natural Law An unjust law is no law at all.
Legal Realism Who enforces the law counts more than what is in writing.
Working with the Book’s Features
Analyzing a Case
Case: Kuehn v Pub Zone2
Facts: Maria Kerkoulas owned the Pub Zone bar, frequented by many motorcycle gangs, and knew from
her own experience and conversations with police that some of the gangs, including the Pagans, were
dangerous and prone to attack customers for no reason. Kerkoulas posted a sign prohibiting any
2 364 N.J.Super.301, 835 A.2d 692 Superior Court of New Jersey, Appellate Division, 2003.
motorcycle gangs from entering the bar while wearing “colors,” that is, gang insignia. Based on her
experience, she believed that gangs without their colors were less prone to violence.
Rhino, Backdraft, and several other Pagans pushed past the bouncer wearing colors and approached the
bar. Although she saw their colors, Kerkoulas served them one drink. They later moved towards the back
of the pub, and Kerkoulas believed they were departing. In fact, they followed a customer named Karl
Kuehn to the men’s room, where without any provocation they savagely beat him, causing serious
injuries.
Kuehn sued the Pub Zone. The jury awarded him $300,000 in damages. The trial court judge overruled
the jury’s verdict and granted judgment for the Pub Zone, meaning that the tavern owed nothing. The
judge ruled that the pub’s owner could not have foreseen the attack on Kuehn, and had no duty to protect
him from an outlaw motorcycle gang. Kuehn appealed.
Issue: Did the Pub Zone have a duty to protect Kuehn from the Pagans’ attack?
Holding: Yes. Whether a duty exists depends upon an evaluation of a number of factors including the
nature of the underlying risk of harm, the opportunity and ability to exercise care to prevent the harm, the
comparative interests of, and the relationships between or among the parties, and, based on considerations
of public policy and fairness, the societal interest in the proposed solution.
Since the possessor [of a business] is not an insurer of the visitor’s safety, he is ordinarily under no
duty to exercise any care until he knows or has reason to know that the acts of the third person are
occurring, or are about to occur. He may, however, know or have reason to know, from past experience,
that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the
safety of the visitor, even though he has no reason to expect it on the part of any particular individual.
The totality of the circumstances presented in this case give rise to a duty on the part of the Pub Zone to
have taken reasonable precautions against the danger posed by the Pagans as a group. There was no
reason to suspect any particular Pagan of violent conduct, but Kerkoulas knew the gang collectively had
engaged in random violence. Thus, Kerkoulas had knowledge, as the result of past experience and from
other sources, that there was a likelihood of conduct on the part of third persons in general that was likely
to endanger the safety of a patron at some unspecified future time. A duty to take precautions against the
endangering conduct thus arose.
Question: What kind of case is this, civil or criminal?
Question: What is the difference?
Answer: In a civil suit, one party is suing the other. In a criminal prosecution, the government is
Question: Who is the plaintiff and who the defendant?
Question: What is the key issue in this civil suit?
Question: Why does Pub Zone claim it had no duty to Kuehn?
Question: What did the trial court conclude?
Answer: Although the jury found in favor of Kuehn and awarded him $300,000 in damages, the trial
Question: What did the appellate court decide?
Question: Why did the court decide that Pub Zone had a duty?
Answer: Kerkoulas’ sign prohibiting patrons from wearing gang colors, and the Pub Zone’s practice
of calling police when patrons violated this rule, showed the Pub’s awareness of the risk of violence
Question: What should Pub Zone have done to satisfy its duty?
Answer:
Enforce its existing rules. Despite Pub Zone’s policy against gang colors, Kerkoulas allowed the
Train bouncers and all other staff to be aware of patrons from whom such violence is foreseeable.