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Suggested 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 back to the class.
Chapter Overview
Chapter Theme
Law is complex. Law can become less baffling if we understand the different types of law and how each
type is made.
Quote of the Day
“Progress everywhere today does seem to come so very heavily disguised as chaos.” –Joyce Grenfell
(1910–1979), British actor.
Common Law
Common law is judge-made law, or the sum total of all the cases decided by appellate courts.
Stare Decisis
Ask students to explain why law must both ensure predictable results and adapt to changes in social
mores, and to explain the role of precedent, stare decisis, and judicial interpretation in achieving these
contrary goals. This theme appears in other places in the text, such as the Contracts unit discussion of
Freedom of Contract and Fairness of Contract.
Bystander Rule
Historically, the common law has required no action at all from those who witness a person in distress.
The bystander has been free to walk away laughing, if he wished. The text describes some of the few
exceptions that have crept into the law.
Question: Is the bystander rule immoral? What are the differences between law and morality?
Answer: Law clearly differs from morality. Anytime the two strongly diverge, it is worth close
scrutiny. See Chapter 1 for a discussion of jurisprudence, and Chapter 2 for a discussion of ethics.
A discussion of the bystander rule will often lead students to ask questions about “Good Samaritan” laws.
Statutory Duty to Provide Assistance
Vermont is one of the few states to have a statute that requires a bystander to become involved in an
emergency. 12 V.S.A. §519 states:
(a) A person who knows that another is exposed to grave physical harm shall, to the extent that the
same can be rendered without danger or peril to himself or without interference with important duties
owed to others, give reasonable assistance to the exposed person unless that assistance or care is
being provided by others.
(b) A person who provides reasonable assistance in compliance with subsection (a) of this section
shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive
or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with
respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of
his practice.
(c) A person who willfully violates subsection (a) of this section shall be fined not more than
$100.00.
Question: One of the reasons the common law of most states has not forced a bystander to render aid
has been the fear that a bystander would do an imperfect job and subject himself to negligence
liability. How has the Vermont legislature attempted to deal with that problem?
Answer: The statue provides, in subsection (b), that a volunteer providing reasonable assistance shall
not be liable for ordinary negligence, but only for “gross negligence.”
1 This episode originally aired May 14, 1998. Current undergraduates, while for the most part too young
to have seen and remembered the original airing, likely have viewed this episode in syndication.
Case: Taraso v. Regents of The University of California2
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?
Holding: The defendants are potentially liable. Once a therapist does determine, or under applicable
professional standards reasonably should have determined, that a patient poses a serious danger of
violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that
danger.
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
Question: Poddar was Dr. Moore’s patient. Did the doctor-patient privilege protect his conversations
with Dr. Moore?
Answer: As a general rule, the doctor-patient privilege would protect such conversations. That
privilege is not absolute and must be balanced against society’s interest in safety from violent assault.
Additional Case: Hardingham v. United Counseling Service of Bennington
County, Inc.4
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.
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. (See discussion above)
2 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 Supreme Court of California, 1976
3 17 Cal. 3d 425, 441
4 672 A.2d 480, 1995 Vt. LEXIS 129 Vermont Supreme Court 1995
Question: Did the defendants' conduct constitute ordinary negligence, meaning they are not liable
under §519(b), or gross negligence, meaning they are liable?
Answer: The court found that the defendants' omission to tell the hospital about the windshield wiper
fluid was not gross negligence. Gross negligence “amounts to a failure to exercise even a slight
The dissent pointed out:
The facts here are particularly telling. Defendants obtained emergency medical assistance
and accompanied plaintiff to the emergency room, but failed to tell the emergency room
physician the most significant fact that was not obvious from plaintiff's condition–that
plaintiff had consumed windshield wiper fluid. The result was that plaintiff was diagnosed at
the emergency room with “depression and acute intoxication” for which the obvious
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 statute states that a bystander who provides assistance to one
Question: Is this gross negligence?
Answer: The majority of the Vermont Supreme Court ruled that no reasonable juror could find this
to be gross negligence because the rescuers, after all, probably saved Hardingham’s life. The
Additional Case: Pehle v Farm Bureau Life Insurance Company, Inc.5
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
5 397 F.3d 897, 2005 U.S. App. LEXIS 2051 Tenth Circuit Court of Appeals. 2005
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, concluding “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 were 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
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
Question: This case involves a federal court applying Wyoming law and ruling on a question that the
Wyoming Supreme Court has not considered. Is that appropriate?
Answer: The dissenting judge did not think so. He believed the court should have certified this
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
How are statutes different from common law?
Bills
The websites that follow provide additional background:
How Our Laws are Made at http://thomas.loc.gov/home/lawsmade.toc.html
Legislative Branch Resources at http://www.gpoaccess.gov/legislative.html
Congressional Committees and the Legislative Process at
http://edsitement.neh.gov/view_lesson_plan.asp?id=284
U.S Government Documents The Legislative Process at
http://www.columbia.edu/cu/lweb/indiv/usgd/legproc.html
Question: What is a bill?
Question: Why are the floors of the House and Senate nearly deserted so much of the time?
Question: Why does Congress do so much of its work in committees?
Answer: Governing the nation is enormously complex business. Like any large organization,
Question: What goes on in a committee?
Answer: Committees investigate the need for new legislation, hold hearings, hear testimony from
Question: How is a House-Senate conference committee different from other committees?
Answer: This special committee exists for only one purpose: to reach a compromise on different
Case: Griggs v. Duke Power Co.6
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: Does Title VII proscribe tests that are neutral on their face but perpetuate discrimination?
Holding: Title VII does proscribe such tests. The Act proscribes not only overt discrimination but also
practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an
employment practice excludes minorities it is prohibited unless it can be shown to relate to job
performance.
Question: What is the important issue that the Griggs case resolved?
Question: May such a law 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
This section discusses the legal framework within which agencies are created. It explains the distinction
between executive and independent agencies, enabling legislation, the Administrative Procedure Act, and
the implementation of agency power via rulemaking, investigation, and adjudication.
An agency may possess and wield only that power delegated by its enabling act. A legislative body may
delegate to an administrative agency only such power as the legislative body itself possesses under the
constitution creating it.
Power of Agencies
Congress creates federal administrative agencies with enabling legislation. The Administrative Procedure
Act controls how agencies do their work.
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.
Adjudication – 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
6 401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134 United States Supreme Court, 1971
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.
R. J. Reynolds Tobacco Co. v. Food and Drug Admin.
696 F.3d 1205
District of Columbia Circuit Court of Appeals, 2012
Facts: The Family Smoking Prevention and Tobacco Control Act (FSPTCA) instructed the FDA to
issue regulations requiring cigarette packaging to contain graphics depicting the negative
consequences of smoking. After holding hearings on its proposed regulation, the FDA issued final
rules, which required the top half of all cigarette packs to depict the adverse effects of smoking. The
FDA’s chosen images were graphic and jarring: a corpse after an autopsy, a smoker’s damaged
lung, and a man exhaling smoke out of a hole in his neck, among others. The rule also required
packages to include written warnings (“WARNING: Smoking causes cancer) and the phone
number for an antismoking hotline, “1-800-QUIT-NOW.”
Tobacco companies filed suit to challenge the FDA regulation, claiming the rule violated the First
Amendment by requiring them to speak against their will. The FDA argued it was just educating
the public with factual information.
Issue: Could the FDA compel tobacco companies to put disgusting and emotionally charged
warning labels on their products?</CSQ>
Argument for the FDA:</CSH1> Cigarettes are the deadliest product sold in America, and one of
the most addictive. The tobacco industry has a history of deceiving customers—particularly the
young and uneducated—about these risks. We are simply ending this history of deception by
requiring companies to disclose factual and uncontroversial information. Smokers have obviously
not been deterred by the current text-only warnings, so these powerful images are the obvious next
step in trying to influence them. Because the warnings are powerful does not make them a violation
of the First Amendment. Nor does the Constitution prohibit us from requiring lethal and addictive
products to carry informative warning labels. Moreover, Congress instructed us to proceed with
these requirements so we are obligated to do so.
Argument for Tobacco Companies:</CSH1> Your honors, look at these pictures. These awful
images do not educate or protect consumers from deception—they just scare them into quitting.
The FDA is treating every single pack of cigarettes as a mini-billboard for an emotionally charged
antismoking agenda. The pictures are neither factual nor accurate: They symbolize the bad effects
of smoking, which is something very different from providing factual information. Rather than
educating and promoting informed choice, the FDA is simply trying to disgust consumers so that
they will “QUIT NOW.” Advocating that the public should not purchase a legal product is not the
same as educating consumers. If it wants to promote an antismoking message, the government
should do so through advertising or increased cigarette taxes, not by making tobacco companies
speak.
Holding: Judgment for the Tobacco Companies. The court vacated the graphic warning requirements and
remanded to the agency.
Question: What does it mean to remand a case?
Question: Why was this case remanded to the agency instead of to the lower court?
Answer: The agency is the entity given responsibility by the FSPTCA to issue regulations requiring
