Environmental Engineering Chapter 1 Introduction Law Suggested Additional Assignments Research

Chapter 1

INTRODUCTION TO LAW

1

Suggested Additional Assignments

Research

Students should pick up an issue of any newspaper and find ten articles dealing with legal issues. The

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.

Strongly

Agree:

5

4

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.

people in the United States.

6. Juries frequently award absurdly high

judgments.

7. It is fairly easy to manipulate the legal

system.

corporations.

United States of resolving disputes.

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.

2 Unit 1 The Legal Environment

Quotes of the Day

Here are two opposing thoughts on “goodness”: “True human goodness, in all its purity and freedom, can

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

Introduction

Complexity

It is often frustrating to students, citizens, and even lawyers that law is so complex. Anglo-American

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

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

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

Chapter 1 Introduction to Law 3

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

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

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

Case: Oculist’s Case

1

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?

4 Unit 1 The Legal Environment

Question: What is a procedural argument?

Answer: A procedural argument focuses on how a dispute should be resolved. In this case, the

Question: Why did the defendant’s attorney make a procedural argument?

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.

Branches of Government

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.

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 comprise the common law. Judges of all courts

Chapter 1 Introduction to Law 5

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

Treaties

Classifications

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.

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 described on page 13.

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?

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

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

6 Unit 1 The Legal Environment

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

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 Zone

2

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

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.

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

2

364 N.J.Super.301, 835 A.2d 692 Superior Court of New Jersey, Appellate Division, 2003

Chapter 1 Introduction to Law 7

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

Question: What kind of case is this, civil or criminal?

Question: What is the difference?

seeking to punish someone for conduct that society will not tolerate.

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?

Answer: The attack was unforeseeable and Pub Zone was not responsible for guaranteeing the

personal safety of its patrons.

Question: What did the trial court conclude?

Question: What did the appellate court decide?

damage award.

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

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

You Be the Judge: Soldano v. O’Daniels

3

Note: There are two reasons for using this case. First is to introduce students to the “You Be the Judge”

feature. There is one such case in almost every chapter. The text provides the facts and issue and then, in

3

141 Cal. App. 3d 443, Court of Appeal of California, 5th Appellate District, 1983.

8 Unit 1 The Legal Environment

place of the court’s holding, gives competing arguments for the two sides. The text’s authors wrote the

arguments, often based on majority and/or dissenting opinions in the case. Since students do not have the

The second reason for using this case is that it builds on the issue of negligence introduced in the Kuehn

v. Pub Zone case, above. This time the court confronts a fight that resulted in a death. The victim’s

distraught family members sued the owner of a bar, claiming that one of his employees was partly

responsible for the death. Once again, the defendant asked the court to dismiss the case, claiming that he

they owed no duty to protect the victims—the same argument made by the Pub Zone.

Facts: In the days before cell phones, a fight broke out at Happy Jack’s Saloon. A Good Samaritan ran

across the street to the Circle Inn. He asked the bartender at the Circle Inn to let him use the telephone to

call the police. but the bartender refused.

The court would place a great burden on the citizens of California by going against precedent. The

Circle Inn is Mr. O’Daniel’s private property. If the court imposes potential liability on him in this case,

would citizens be forced to open the doors of their homes whenever a stranger claims that there is an

emergency? Criminals would delight in their newfound ability to gain access to businesses and

residences by simply demanding to use a phone to “call the police”.

The law has developed sensibly. People are left to decide for themselves whether to help in a

dangerous situation. They are not legally required to place themselves in harm’s way.

Holding: The case was reversed and remanded to trial court.

Chapter 1 Introduction to Law 9

Question: Did the bartender owe a duty?

Question: What is an argument for imposing this duty?

Multiple Choice Questions

1. The United States Constitution is among the finest legal accomplishments in the history of the world.

Which of the following influenced Franklin, Jefferson, and the rest of the Founding Fathers?

(a) English common law principles

(b) The Iroquois’ system of federalism

(c) Both A and B

(d) None of the above

2. Which of the following parts of the modern legal system are “borrowed” from medieval England?

(a) Jury trials

(b) Special rules for selling land

(c) Following precedent

(d) All of the above

3. Union organizers at a hospital wanted to distribute leaflets to potential union members, but hospital

rules prohibited leafleting in areas of patient care, hallways, cafeterias, and any areas open to the public.

The National Labor Relations Board (NLRB), a government agency, ruled that these restrictions violated

the law and ordered the hospital to permit the activities in the cafeteria and coffee shop. What kind of law

was it creating?

(a) A statute

(b) Common law

(c) A constitutional amendment

(d) Administrative regulation

4. If the Congress creates a new statute with the President’s support, it must pass the idea by a

____________ majority vote in the House and the Senate. If the President vetoes a proposed statute and

the Congress wishes to pass it without his support, the idea must pass by a ____________ majority vote

in the House and Senate.

(a) simple; simple

(b) simple; 2/3

(c) simple; 3/4

(d) 2/3; 3/4

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5. What part of the Constitution addresses most basic liberties?

(a) Article I

(b) Article II

(c) Article III

(d) The Amendments

Essay Questions

1. Burglar Bob breaks into Vince Victim’s house. Bob steals a flat screen TV and laptop, and does a

significant amount of damage to the property before he leaves. Fortunately, Vince has a state of the

art security system. It captures excellent images of Bob, who is soon caught by police.

Assume that two legal actions follow, one civil and one criminal. Who will be responsible for

bringing the civil case? What will be the outcome if the jury believes that Bob did in fact burgle

Vince’s house? Who will be responsible for bringing the criminal case? What will be the outcome

this time if the jury believes that Bob did in fact burgle Vince’s house?

Answer: The civil case will be brought by Victim, and the outcome of a successful case against Bob

2. As “The Oculist’s Case” indicates, the medical profession has faced large number of lawsuits for

centuries. In Texas, a law provides that, so long as a doctor was not reckless and did not intentionally

harm a patient, recovery for “pain and suffering” is limited to no more than $750,000. In many other

states, no such limit exists. If a patient will suffer a lifetime of pain after a botched operation, for

example, he might recover millions in compensation.

Which rule seems more sensible to you – the “Texas” rule, or the alternative?

3. You Be the Judge: WRITING PROBLEM Should trials be televised? Here are a few

arguments to add to those in the chapter. You be the judge.

Arguments against Live Television Coverage: We have tried this experiment and it has failed.

Trials fall into two categories: Those that create great public interest and those that do not. No one

watches dull trials, so we do not need to broadcast them. The few that are interesting have all become

circuses. Judges and lawyers have shown that they cannot resist the temptation to play to the camera.

Trials are supposed to be about justice, not entertainment. If a citizen seriously wants to follow a case,

she can do it by reading the daily newspaper.

Arguments for Live Television Coverage: It is true that some televised trials have been unseemly

affairs, but that is the fault of the presiding judges, not the media. Indeed, one of the virtues of

television coverage is that millions of people now understand that we have a lot of incompetent

people running our courtrooms. The proper response is to train judges to run a tight trial by

prohibiting grandstanding by lawyers. Access to accurate information is the foundation on which a

democracy is built, and we must not eliminate a source of valuable data just because some judges are

ill-trained.

Chapter 1 Introduction to Law 11

4. Leslie Bergh and his two brothers, Milton and Raymond, formed a partnership to help build a fancy

saloon and dance hall in Evanston, Wyoming. Later, Leslie met with his friend and drinking buddy,

John Mills, and tricked Mills into investing in the saloon. Leslie did not tell Mills that no one else was

investing cash or that the entire enterprise was already bankrupt. Mills mortgaged his home, invested

$150,000 in the saloon—and lost every penny of it. Mills sued all three partners for fraud. Milton and

Raymond defended on the ground that they did not commit the fraud, only Leslie did. The defendants

lost. Was that fair? By holding them liable, what general idea did the court rely on? What Anglo–

Saxon legal custom did the ruling resemble?

Answer: The partners are indeed liable. Bergh v. Mills, 763 P.2d 214 (Wyo. 1988). That is the

conduct of the others.

5. Kuehn v. Pub Zone and Soldano v. O’Daniels both involve attacks in a bar. Should they come out in

the same way? If so, which way – in favor of the injured plaintiffs or owner-defendants? Or, should

they have different outcomes? What are the key facts that lead you to believe as you do?

Discussion Questions

1. Do you believe that there are too many lawsuits in the United States? If so, do you place more blame

for the problem on lawyers or on individuals who go to court? Is there anything that would help the

problem, or will we always have large numbers of lawsuits?

2. In the 1980s, the Supreme Court ruled that it is legal for protesters to burn the American flag. This

activity counts as free speech under the Constitution. If the Court hears a new flag burning case in this

decade, should it consider changing its ruling, or should it follow precedent? Is following past precedent

something that seems sensible to you: always, usually, sometimes, rarely, or never?

3. When should a business be held legally responsible for customer safety? Consider the following

12 Unit 1 The Legal Environment

4. In his most famous novel, The Red and the Black, the French author Stendhal (1783–1842) wrote:

“There is no such thing as ‘natural law’: this expression is nothing but old nonsense. Prior to laws, what is

natural is only the strength of the lion, or the need of the creature suffering from hunger or cold, in short,

need.” What do you think? Do legal positivism or legal realism seem more sensible to you?

Answer: Natural law should be a question in the back of our minds throughout the course, because it is a

5. At the time of this writing, voters are particularly disgruntled. A good many seem to be disgusted with

government. For this question, we intentionally avoid distinguishing between Democrats and

Republicans, and we intentionally do not name any particular president. Consider the following

statements, and circle the degree to which you agree or disagree:

a. I believe that members of Congress usually try to do the right thing for America.