Unlock document.
This document is partially blurred.
Unlock all pages and 1 million more documents.
Get Access
Suggested Additional Assignments
Research
Students should pick up an issue of any newspaper 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. If researching articles in the
classroom, 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 a course, it can be useful to get a feel for student attitudes about law and lawyers.
The instructor might copy and distribute this poll on the first day, have students collate the responses, and
chart the results on the board as a prelude to discussion.
Strongl
y
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
The principles discussed in this book are practical. Neither the book nor the course is a theoretical
exercise. The law will affect students, regardless of their career, whether they want it to or not. The more
students understand the law the more they can use it productively.
Quotes of the Day
Here are two opposing thoughts on “goodness”: “True human goodness, in all its purity and freedom, can
come to the fore only when its recipient has no power.” –Milan Kundera, Czech author (b. 1929). “What
is good? All that heightens the feeling of power, the will to power, power itself in man.” –Friedrich
Nietzsche, German philosopher (1844 1900).
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.
Intro
Complexity
It is often frustrating to students, citizens, and even lawyers that law is so complex. Anglo -American
legal history consists, in part, of a clash of powerful, competing interests: property ownership, ethics, raw
power, business practices, personal responsibility, social mores, and the need for predictability, to list a
few. To understand the interplay of these forces is to understand why law is complicated.
Ambiguity
A related point is that many students—indeed, many non-lawyers—dislike the law’s ambiguity. They
want to learn “the law” as a set of rules with unvarying application, and are uncomfortable with the “what
if” scenarios through which lawyers learn to apply legal principles. Students must learn that law acquires
meaning only through application. If students, especially those in categories (1) and (4) above, leave the
course with greater understanding of why the law is ambiguous, why a lawyer’s first response to a
question about the law is often “it depends,” then the instructor should consider it a success.
Competing Interests
From a newspaper article about a legal issue, students should identify two or more competing interests. In
an article about tobacco litigation, they might compare the tobacco companies’ property interest in a
profitable commodity, the companies’ obligation to divulge what they knew concerning nicotine, the
personal responsibility of those who chose to smoke, the state’s interest in reducing medical costs, the
companies’ right to free speech (advertising), the federal government’s interest in regulating smoking, and
the state’s obligation to protect children. The more important the legal issue, the less likely there is a
simple solution to make everyone happy.
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
Laws affect nearly everything we do every day. 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. 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 earned
the label “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 draws influence from many different societies. The law also grows and
adapts to the changing needs of a changing society.
Precedent
Law balances the need for predictability with the need for change. Students should consider the values
served by precedent 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, 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 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?
1 LI MS. Hale 137 (1), fo. 150, Nottingham, 1329
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
Question: In a lawsuit today, would the plaintiff need to demonstrate that the defendant deliberately
harmed him?
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.
Legislative power is the ability to create new laws; it is balanced by executive power of the veto and
judicial power of interpretation and determination of 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 laws and determine their validity; it is balanced by the executive
power to appoint justices and legislative power to approve justice nominees. Congress can also amend the
Constitution with the approval of the states.
Fundamental Rights
The Constitution also grants many of our most basic liberties, generally 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 comprise the common law. Judges of all courts
below the Supreme Court will refer to previous cases (precedent) to rule on present cases. The principle
that precedent is binding on later cases is called stare decisis, meaning, “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 U.S. 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 8 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? As an example, look at the Proposition 187 controversy.
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 bullet points responding to the principal’s statements. With
which argument(s) 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 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?
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? 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 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.
