978-1285427003 Chapter 4 Lecture Note Part 1

subject Type Homework Help
subject Pages 8
subject Words 3997
subject Authors Jeffrey F. Beatty, Susan S. Samuelson

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Suggested Additional Assignments
Evolution of the Common Law
Ask students to summarize the common law principles of the bystander cases in the text and then create
their own bystander examples. First, students should write a two- or three-sentence summary of the law
given in each of these cases: Union Pacific Railway Co. v. Cappier, Carey v. Davis, Osterlind v. Hill,
Tarasoff v. Regents of the University of California, and Parra v. Tarasco. Then students should create their
own modern hypothetical bystander situation and provide brief arguments for and against liability. This
should help them see the gradual evolution of the law, and anticipate future changes in this doctrine.
Research: Legislative Process
Have students find a newspaper article on a bill that is working its way through Congress. They should
report on the bill's exact status: which house it is in, which committee is responsible for it, who favors and
opposes it, what interests are at stake, and what lobbyists have an interest in it. If the article makes no
mention of lobbyists, which ones would the students expect to be involved? What is their view of the
proposed legislation? Students may want to supplement the text by reading How Our Laws Are Made on
the Library of Congress’ THOMAS website (http://thomas.loc.gov/home/lawsmade.toc.html).
Research: Campaign Finance
Have students research campaign contributions made in a recent U.S. House or Senate campaign.
Campaign finance reports and data are available at the Federal Election Commission website at
http://www.fec.gov/disclosure.shtml. Students can track how much money each candidate received, the
identity of major contributors, which organizations spent money on electioneering communications, and
how much they spent.
Agency Law
Students should write one-paragraph descriptions of three federal or state agency regulatory programs that
affect their lives in some way. For example, a student could discuss airline regulation, food safety
inspection, automobile recalls, and so forth. Students should identify the agency involved, summarize the
regulatory scheme, and briefly explain how those regulations affect them.
Research: Regulated Industries
Ask students to identify what industry they intend to enter upon graduation. For example, banking,
financial planning, accounting, insurance, advertising, etc. Then ask students to research the various
federal and state regulations that apply to that industry and report to the class.
Chapter Overview
Chapter Theme
Law is complex. Law becomes less baffling when we understand the different types of law and how law
is made. This chapter examines Common Law, Statutory Law, and Administrative Law.
Common Law
The common law is judge-made law. It is the sum total of all the cases decided by appellate courts.
Stare Decisis
Stare decisis means “let the decision stand.” Once a court has decided a particular issue, the court
establishes precedent, and the court will generally apply the same rule in similar cases in the future.
A desire for predictability created the doctrine of stare decisis. Yet, there must also be flexibility in the
law. There must be some means to respond to new problems and a changing social climate.
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Bystander Cases
The “bystander rule” is an example of the conflict between the need for predictability and for flexibility in
the law.
Historically, the common law rule about a bystander’s obligation was that a bystander had no duty to
assist someone in peril unless the bystander created the danger. Often criticized as harsh and cruel, courts
nonetheless followed this rule under the doctrine of stare decisis. The common law with respect to
bystander cases changed slowly, however, as courts over time found small exceptions to the rule.
Case: Taraso v. Regents of the University of California1
Facts: Prosenjit Poddar killed Tatiana Tarasoff. Tatiana's parents claimed that two months earlier Poddar
had confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the
University of California at Berkeley. They sued the university, claiming that Dr. Moore should have
warned Tatiana and/or should have arranged for Poddar's confinement.
Issue: Did Dr. Moore have a duty to Tatiana Tarasoff? If so, did he breach that duty?
Decision: Yes, Dr. Moore had a duty to Tatiana Tarasoff.
Reasoning: Under the common law, one person generally owes no duty to control the conduct of another
or to warn anyone who is in danger. However, courts make an exception when the defendant has a special
relationship to a dangerous person or potential victim. A therapist is someone who has just such a special
relationship with a patient.
Question: After the Tarasoff case, do people generally have a duty to come to the aid of someone in
danger?
Question: What is the exception that this decision creates?
Answer: Once a therapist determines, or should have determined, that a patient poses a serious
Question: Therapists hear patients' anger all day long. How can a therapist know for sure whether a
patient is serious in making a threat?
Answer: The therapist need not do a perfect job. He must analyze a patient the way a reasonable
Additional Case: Hardingham v. United Counseling Service of Bennington
County, Inc.2
Hardingham was a recovering alcoholic. Defendant United Counseling Service (UCS) gave him a job as
an emergency services counselor. Halpin, UCS's executive director, learned that Hardingham was again
drinking. Halpin and other UCS employees went to Hardingham's home, where they found him
inebriated. They saw him attempt to drink from a bottle apparently filled with windshield wiper fluid.
1 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 Supreme Court of California, 1976.
2 672 A.2d 480, 1995 Vt. LEXIS 129 Vermont Supreme Court 1995
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They took the bottle away and took Hardingham to the local emergency room. Hardingham refused to
take a blood test and the UCS employees neglected to tell the hospital that he had evidently been drinking
wiper fluid. Because Hardingham refused to cooperate with hospital employees, the police took him to a
correctional center. Overnight, Hardingham suffered severe distress and the police returned him to the
hospital. Tests revealed methyl alcohol in his blood, apparently from the wiper fluid. The substance left
Hardingham with permanent injuries, including blindness. He sued UCS and its employees under 12 V.S.
A. §519.
Question: Had his rescuers spent a few moments advising emergency room personnel that
Hardingham had drunk windshield washer fluid, they might have saved him from blindness and other
serious injuries. Why doesn’t the court hold them liable for their failure to perform such a simple act?
Answer: The Vermont Good Samaritan statute3 states that a bystander who provides assistance to one
Additional Case: Pehle v Farm Bureau Life Insurance Company, Inc.4
Facts: When they applied for life insurance from Farm Bureau Life Insurance Company ("Farm Bureau")
in 1999 Wyoming resident Gary Pehle and his wife, Renna, did not know they were infected with the
Human Immunodeficiency Virus ("HIV"). Farm Bureau collected the initial premium and arranged for the
Pehles to obtain blood tests as part of the application process. Farm Bureau forwarded the blood samples
for analysis to LabOne, an independent laboratory, which reported the Pehle’s HIV-status to the insurance
company. Farm Bureau then rejected the Pehle’s application and advised them that it would disclose the
reason for their rejection to their physician if they desired. The Pehle’s did not follow up to learn the
reason for the rejection.
Two years later Renna Pehle was diagnosed with AIDS. They looked into their medical records and
learned that Farm Bureau had known of their HIV-positive status when it rejected their life insurance
application. The Pehles sued Farm Bureau, LabOne, and LabOne’s medical director, Dr. J. Alexander
Lowden, for negligence, for failing to tell them they were HIV-positive. The District Court found that
Wyoming law recognized no duty running from a life insurance company to its applicants or from a
laboratory hired by the life insurance company to its applicants. The court granted summary judgment in
favor of all three defendants. The Pehles appealed.
Issue: Did Farm Bureau, LabOne, and Dr. Lowden have a duty to notify the Pehles of their HIV-positive
status?
Holding: The Circuit Court of Appeals affirmed the trial court’s grant of summary judgment in favor of
LabOne and Dr. Lowden and reversed its judgment in favor of Farm Bureau. The court concluded “that if
an insurance company, through independent investigation by it or a third party for purposes of
determining policy eligibility, discovers that an applicant is infected with HIV, the company has a duty to
disclose to the applicant information sufficient to cause a reasonable applicant to inquire further.” The
Pehle’s relationship with LabOne and its medical director was attenuated but they had “a good deal of
contact” with Farm Bureau. Wyoming law had not directly addressed this issue, so the court made “an
Erie-guess as to how the Wyoming Supreme Court would rule.”
Farm Bureau argued that there is a legal distinction between a duty arising from misfeasance—acting
wrongfully—and nonfeasance—failing to act. It argued that its failure to notify the Pehles was
nonfeasance and put it in the same position under common law as a rescuer with no duty to help. The
court did not agree for two reasons. First, it believed Farm Bureau’s actions could be characterized as
either misfeasance or nonfeasance so any legal distinction between the two was not useful: “[p]utting
3 12 V.S.A. §519 (requires a bystander to become involved in an emergency).
4 397 F.3d 897, 2005 U.S. App. LEXIS 2051 Tenth Circuit Court of Appeals. 2005.
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HIV-positive applicants on notice of their infection could be considered a normal part of testing for
HIV...” Second, “it is not clear whether Wyoming accepts the binary act/omission distinction in tort.”
Whether Farm Bureau had a duty to notify the Pehles of their HIV-status depends on whether the law
implies the existence of a confidential relationship “of trust and confidence:”
By encouraging the Pehles to purchase life insurance through them, Farm Bureau purported to act with
the Pehles' best interests in mind. In submitting to a procedure for extraction and consenting to an
examination of their blood, the Pehles demonstrated that Farm Bureau had gained their confidence. We do
not think that insurance companies must exist to treat or diagnose HIV in order for a duty to arise that
necessitates that applicants be properly put on notice to inquire further.
Because there was a genuine issue of material fact as to whether Farm Bureau disclosed to the Pehles
“information sufficient to cause a reasonable applicant to inquire further” the trial court incorrectly
granted summary judgment in favor of Farm Bureau.
Question: What is summary judgment?
Answer: A court may enter summary judgment in favor of one party when the parties do not dispute
Question: Why did Farm Bureau distinguish between misfeasance—acting wrongfully—and
nonfeasance—failing to act?
Answer: Farm Bureau characterized its failure to notify the Pehles as nonfeasance and said it was
Question: Did the court agree?
Question: It appears that the Pehles never asked Farm Bureau why it rejected their application. If
they had shown the slightest curiosity about the reason isn’t it likely that they would have learned
then of their HIV-status?
Answer: Perhaps. The court cannot speculate on what might have happened. At trial, the court would
Question: Doesn’t this case create a troubling precedent for life insurance companies? How can they
know which medical conditions uncovered during blood work will impose on the company a duty to
notify the applicant?
Question: But couldn’t a future plaintiff use this case as precedent if an insurance company failed to
notify the plaintiff that it discovered some other serious disease during a blood test?
Answer: A future plaintiff in such a case would undoubtedly rely on this case as precedent but the
Statutory Law
Statutory law consists of statutes passed by legislative bodies. More law is created by statute than by the
courts.
Bills
A bill is a proposed statute. To become law, a bill must be voted on and approved by both houses of
Congress (the House of Representatives and the Senate). Once Congress passes a bill, the bill will be sent
to the President. If the President signs the bill, it becomes law and is then a statute. If the President
opposes the bill, he will veto it, in which case it is not law. Congress can pass the over the President’s veto
with a two-thirds majority in each house
Statutory Interpretation
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Courts interpret a statute by using the plain meaning rule; then, if necessary, legislative history and intent;
and finally, if necessary, public policy.
Landmark Case: Griggs v. Duke Power Co.5
Facts: Duke Power used a high school completion requirement and an intelligence test in hiring and
promotion. The result was that fewer minority applicants qualified for jobs at Duke Power. Griggs sued
under Title VII.
Issue: Did Title VII of the 1964 Civil Rights Act require that employment tests be job-related?
Decision: Yes, employment tests must be job-related.
Reasoning: Congress's goal in enacting Title VII is plain from its language: to achieve equality of
opportunity and remove barriers that have favored whites. An employer may not use any practice,
to job performance, and therefore neither is permissible.
Question: What is the important issue that the Griggs case resolved?
Question: May such a practice violate Title VII?
Question: Why did the court rule as it did?
Answer: The court said that Congress enacted Title VII to achieve equality of employment
Administrative Law
Administrative Law consists of regulations, orders, rules, and decisions promulgated by administrative
agencies in order to perform powers and duties delegated to such agencies.
Agencies exist at the federal, state, and local level. Some federal agencies are part of the executive
branch, while others are independent agencies. The President has much greater control of executive
agencies than of independent agencies.
Rulemaking
Agencies may promulgate legislative rules, which generally have the effect of statutes, or interpretive
rules, which merely interpret existing statutes.
Investigation
Agencies have broad investigatory powers and may use subpoenas and, in some cases, warrantless
searches to obtain information. A subpoena is an order to appear at a particular time and place to provide
evidence.
Adjudication
5 401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134 United States Supreme Court, 1971.
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Agencies adjudicate cases, meaning that they hold hearings and decide issues. Adjudication generally
begins with a hearing before an Administrative Law Judge and may involve an appeal to the full agency
or ultimately to federal court.
Ubiquitous Agencies
It is ironic that the effect on our lives of administrative regulations is so pervasive, yet the process by
which administrative agencies create their regulations is rarely before us. What was the last movie or
television drama in which the protagonist delivered an impassioned speech to a regulatory board? Law
and Order: FTC has not made it to the airwaves. One can argue, however, that we experience the work of
administrative agencies more often than other law-making bodies.
Landmark Case: United States v. Biswell6
Facts: Biswell operated a pawnshop and had a license to sell "sporting weapons." Treasury agents
demanded to inspect Biswell's locked storeroom without a warrant, claiming that the Gun Control Act of
1968 gave them that right. Under this law, Treasury agents had permission to inspect firearm dealers’
business records, firearms and ammunition during business hours.
Biswell voluntarily opened the storeroom, and the agent found two sawed-off rifles inside. The guns
did not remotely meet the definition of "sporting weapons," and Biswell was convicted on firearms
charges.
The appellate court found that, because the search violated the Fourth Amendment, the rifles could
not be admitted as evidence. It reversed the conviction, and the government appealed to the Supreme
Court.
Issue: Did the agent’s warrantless search violate the Constitution?
Decision: No, the agent had a right to search the firearm dealer’s premises without a warrant.
Reasoning: The Gun Control Act of 1968 was a valid statute aimed at regulating firearms and preventing
violent crime. As part of this effort, it gave the Treasury agents the right to perform frequent and
unannounced inspections of firearm dealers’ premises. What good is a firearm inspection that is
Warrants protect an individual’s expectation of privacy. Biswell had no justifiable expectation of privacy
Since inspections furthered the Gun Control Act’s important purpose and Biswell could not reasonably
Question: Why should this case be evaluated under the Power of Agencies?
Answer: Both because it is a retail operation, governed by the Treasury, and because it is a firearms
Question: Should a Treasury agent be allowed to conduct a surprise search? Why or why not?
Answer: Yes, to ensure that business owners like Biswell comply with the law. Advance notification
Question: Did the agent’s warrantless search violate the Constitution?
Answer: The court said that the search was reasonable and that Biswell had been informed that this
6 406 U.S. 311, SUPREME COURT OF THE UNITED STATES (1972).
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Additional Case: Doe v. Maryland Board of Social Works7
Facts: “Mrs. F” was a licensed social worker in Maryland. One of her clients, “John Doe,” was convicted
of child abuse and sex offenses involving his minor granddaughter. The Board of Social Work Examiners,
an administrative agency, learned that Mrs. F. had likely violated the law by failing to report the abuse.
The agency began an investigation and issued a subpoena duces tecum to Mrs. F., demanding all
treatment records for John Doe and his wife Jane Doe, for the year in which the abuse occurred.
The Does (“Petitioners”) sued, asking the court to quash the subpoena. They claimed that a social
worker-client privilege prohibited disclosure of their records. The intermediate Court of Appeals declared
the subpoena valid. The Does appealed to the state’s highest court.
Issue: Was the subpoena valid?
Holding: Validity of subpoena affirmed. It wrote:
A state statute affords social workers and their clients similar protections that have long been
applicable to other relationships where privacy issues and the need for open communication are of
paramount importance, e.g., marital privilege, attorney—client privilege, psychiatrist/psychologist—
patient privilege, clergyman—communicant privilege, etc. We consider the information contained in
those treatment records to be both confidential and privileged. Therefore, we must examine the
Board's claim that its subpoena power and obligation to oversee the conduct of the licensed social
workers of this State provides an exception to petitioners' privilege and confidentiality rights as
provided by law.
The Board’s interests in obtaining Ms. F’s treatment records are clearly compelling. The legislature
established the Board to protect the public by setting and maintaining high professional standards for
social work. As the Court of Special Appeals stated: "To deny the Board access to patient files is to
deny it the ability to carry out its legislative mandate.”
Neither the social worker—client privilege nor any claim concerning petitioners' constitutional right
to privacy automatically prevents the Board from subpoenaing petitioners' treatment records. While
the Board is required by law to protect the petitioners' treatment records from further disclosure, the
Board must be allowed to have access to those treatment records in order to fulfill its statutory
mandate to protect the public by conducting a full investigation and, where appropriate, disciplining
those licensed social workers who are found to be in violation of the [law].
Question: Did the Does move to quash the subpoena only because they sought to block the
investigation?
Question: If those communications were confidential, than why may the Board of Social Work
abrogate the Does’ privilege?
Answer: The Board must balance competing interests. It must balance the policies served by the
Question: What facts support abrogating the privilege in this case?
Answer: Mrs. F, the Does’ social worker, may have violated her legal duty to report Mr. Doe’s abuse
of his minor granddaughter. One responsibility of the Board of Social Work is to investigate whether
General Question: If in reviewing the records, the Board discovered evidence that the Does had
committed other crimes, could the Board act on its knowledge?
7 384 Md.161, 862 A.2d 996 Maryland Court of Appeals, 2004.
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