• Abstract and Figures
• Public Full-text

Chapter 1 INTRODUCTION TO LAW

Suggested Additional Assignments

Research Students should pick up an issue of any newspaper. They should see how quickly they can spot 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 they time themselves as they search, they should be able to find ten articles in two minutes or less. Students should select an article that interests them and be prepared to discuss it.

Read and Write: Students should be directed to read the two quotes provided with the lesson materials and think about the meaning of each, as well as their position as to each perspective represented. Finally, students should draft a brief essay in which they discuss which of the two aligns more closely with their view of law today, and most important why. Encourage the students to cite to specific reasons they hold their position. The papers can be used as a discussion point in the classroom setting, and should also be retained by each student in the Personal Reference Journal (PRF) recommended as a learning tool in this course. The student should organize the materials in the PRJ as he or she determines fits best for the individual learning and organizing style. This exercise could be used in the final lesson as a discussion point and as the basis for another essay in which the student compares and contrasts the views held at the beginning and end of the coursework. The above exercise is particularly effective when coupled with the before and after treatment of the poll below.

Poll At the beginning of a course it can be useful to get a feel for student attitudes about law and lawyers. This poll can be copied and distributed on the first day; both students and professor may find the responses interesting. Once completed, the students should be asked to retain a copy in their Personal Reflections Journal (PRJ). In the last session, the students should be given the same poll again. The responses, particularly changes should be discussed, and students should be asked to indicate specifically what part of the course repeated to the changed response, and why the initial response changed.

Strongly Neutral: Strongly Agree: Disagree: 5 4 3 2 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. The American legal system is

1 2 Unit 1 The Legal EnvironmentIntroduction

deeply flawed and needs major reforms.

4. The American legal system makes no sense.

5. Lawyers are among the most dishonest people in the United States. 6. Lawyers are paid too much.

7. Being on a jury is a waste of time. 8. Juries frequently award absurdly high judgments. 9. It is fairly easy to manipulate the legal system. 10. The legal system often abuses large corporations. 11. Large corporations often abuse the legal system. 12. Other nations do a better job than the United States of resolving disputes.

13. There is no real value in learning about law unless you are going to law school. 14. The typical business executive has more integrity than the average lawyer.

In the final week of the course, the students should be given another blank copy of the poll, and after completion, compare their responses. If any have changed, they should briefly explain the change, supporting their explanation with specific aspects of the course work that contributed to the change. If some of the responses have remained the same, they should indicate what specifically in the course reinforced their initial response prior to completing the course work.

Note: The Personal Reflection Journal (PRJ) is designed and organized by each student in a format and style consistent with their learning and organizational style. The materials included show the progression of the learning experience, retains copies of material the student finds particularly important such as case opinions, or statutes, or articles or his or her own jottings on topics which the student found particularly compelling can be retained. The Journal is frequently used to collect various written assignments the student completes, to use in the future as part of a portfolio for a prospective employer, or other applications where the student is required to demonstrate competence, understanding and critical Chapter 1 Introduction to Law 3 thinking skills. The individual instructor determines if review with the student is helpful. Often, reviewing the materials in the journal mid term, not necessarily for grade, but for purposes of mid term progress reports is extremely useful to demonstrate to the student progress, learning, and understanding acquired throughout the coursework. The Journal also provides tangible evidence to the student that the materials covered in the coursework are relevant and applicable to real life.

Update: Students should be encouraged to complete the Update features that appear in various chapters. They should complete the research, read the materials as directed in the Update feature for the particular lesson, and finally use the information attained in the class discussions.

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 you, regardless of your career, whether you want it to or not. The more you understand the law, the more you can use it for your own productive purposes.

Quotes of the Day Here are two different thoughts on law:

“Good laws have their origins in bad morals”. Ambrosius Macrobius

“I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations”. – James Madison, 4th president of US (1751 - 1836)

The two quotations should be distributed either by Power Point display, on the whiteboard or otherwise and used as discussion points for the class, and the Read and Write assignment recommended for this lesson. What do they implicate about the relationship if any between personal and corporate ethics, moral conduct, and the essence of law as related to social good and individual rights and goodness?

Origins of Our Law Key Issue: Complexity It is often frustrating to students, citizens, and even lawyers that law is so complex. There are reasons for its intricacy. Anglo-American legal history consists, in part, of the clash of powerful, competing interests, such as ownership of property, ethics, raw power, business practices, personal responsibility, and the need for predictability. To understand the interplay of these forces is to see why law is complicated.

Action Learning From the newspaper article about a legal issue selected earlier, students should identify two or more competing interests. For example, in an article about a securities suit, they should compare (1) the right of an injured investor to seek compensation and (2) the right of a corporation to be free of vexatious litigation. 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 4 Unit 1 The Legal EnvironmentIntroduction 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 it is that there is a simple solution that will make everyone happy. At the conclusion of the discussions, instructors should summarize the discussion points presented, and point put to the students that the variety of issues and positions is a prime example of what law in real life actually is, and how it can become complex if a number of different positions emerge on one fundamental issue, and the potential for irreconcilable differences even following reasonable discussion.

Current Focus Discussion Topics: Collective Responsibility Here is an example of a collective responsibility issue. The company for which you are employed is under pressure from the stockholders to increase profits and manufacturing quotas to retain the market share the company has historically maintained. This pressure requires the firm to run the machinery around the clock and thereby eliminate the customary downtime to maintain the equipment, and ensure that it is in peak operating condition. The company justifies the decision to do so base upon the record of injury free operation that they have enjoyed in the past. The company also claims they will only keep this schedule during the peak season and will return to the two shifts on, one off schedule thus resuming the customary maintenance schedule previously applied. Needless to say, the equipment begins to show the strain, the employees are unhappy, but nonetheless, both profits and production show improvement. STUDENT DISCUSSION: What are the interests of each participant or stakeholder? What is the collective interest and responsibility? How do the competing interest become reconciled to meet the goals and ideals of each stakeholder? These are some of the discussion promoters that the instructor should present to the students to stimulate discussion and thinking. Necessarily, there is not one correct answer. Rather there is a negotiated response that recognizes the interest, needs and limitations of each, and resolves the situation in a way that respects each as well as the collective responsibility. For an interesting perspective on collective corporate responsibility, direct students to read the following: Ratner, S.R. (2001) Corporations and Human Rights: A Theory of Legal Responsibility. Yale Law Journal, Vol. 111. Divide the class into pairs or teams to read, discuss, summarize and comment on the article and its value for corporate America and daily operations.

Sources of Law Key Issue: Federal Form of Government One reason for the complexity of our law is federalism. This issue has regularly come before the federal Supreme Court as issues arise testing the power of the state as related to the power and position of the federal government and law. A current issue that apparently polarizes the country is the medical use of marijuana. In California, the law is clear that under certain circumstances medical use of marijuana is permitted. However, the federal government takes an opposing position and has refused to pass legislation permitting the use. For an excellent explanation of federalism in relation to this issue and the exercise of state power, go to this link, http://writ.corporate.findlaw.com/hamilton/20041202.html. After reading the article, briefly summarize the issue, the impact both state and federal and your position on exercise of the state right to choose legislation on a federally controversial issue.

CLASS DEBATE: After students finish reading the materials, a discussion should ensue in the form of class debate with the instructor as moderator. The objective is to elicit sound arguments for either Chapter 1 Introduction to Law 5 position. Thus, the “winning” side becomes the one that presents the most cogent arguments, not merely emotionally based statements.

Classifications of Law Key Issue: Criminal vs. Civil Law Most law is civil law. Most law depicted on television is criminal. Therein lays a challenge for many students. Civil law does not involve guilt or punishment, the two concepts that television law endlessly portrays. Question: What is wrong with this sentence: “The court found Sheila guilty of breaching the contract”? Answer: Breach of contract is a civil law issue, and therefore does not involve guilt or punishment. If the plaintiff wins, the defendant must pay compensation. Question: Why does society distinguish between criminal and civil law? Answer: With criminal law, society outlaws behavior that proves threatening to the whole populace. Arson is dangerous because it costs lives, destroys property, and drives up insurance costs. Civil law is different. Sheila's breach of contract does not threaten the fabric of society, and no prosecutor will seek to jail her. Yet an injured party is entitled to compensation. With civil law, society establishes certain ground rules but requires the parties themselves to resolve disputes.

CURRENT ISSUE ANALYSIS:

Now that you understand the difference between civil and criminal law, let’s look at some cases of recent note wherein a criminal trial was followed by a civil trial alleging essentially the same issues. The case of California vs. Robert Blake, in which Mr. Blake stood accused of killing his wife, Bonny Lee Bakley and State of California vs. Orenthal James Simpson, which tried Mr. Simpson for the murder of his former wife, Nicole Simpson, and her friend, Ron Goldman, are two recent examples. In each instance, after acquittal on the criminal charges, the defendants were each sued in civil court. Students should discuss how a defendant can be tried in both a civil and criminal action for essentially the same offense.

Answer: Differing standards of proof. Students should be given tips for researching the standard of proof for civil and criminal trials. They should also understand the relationship if any of the verdict in the criminal action on the civil action and evidence permitted in the civil action. Students should be directed to that response and discussion on the rationale and justification should be entertained. HINT: For students unfamiliar with both cases, you may want to direct them to www.courttv.com to find trial coverage and discussion. 6 Unit 1 The Legal EnvironmentIntroduction

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.

STUDENT DISCUSSION: Students should be asked to analyze if indeed the law is appropriately involved in such issues. Further, the students should explore the issue of individual rights in relation to governance and government imposition of laws regulating otherwise personal issues. Students should be guided into understanding that one of the issues served is the need for structure in a society of individuals. They should explore the issue of how social interests promote rather than infringe upon individual rights. Key Issue: Law and Morality Quotes of the Day Here are two different 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). Question: Which commentator embraces your concept of the relationship of power and good? Does power corrupt? Or is a person useful to society only if he has the power to utilize his goodness? Answer: Nietzsche believed that the basic human drive was the will to power. He thought that power would enable a person to re-create himself into something better, and loftier, and that a truly good person could not exist without it. Kundera shows deep suspicion of power, evidently agreeing with Lord Acton (1834-1902) that, “Power tends to corrupt and absolute power corrupts absolutely.” The relationship of power to goodness is a useful one to have in mind in a law course.

Although we all engage in contractual relationships on a regular basis, there is not always an equal bargaining position. For example, when you purchase a car, and need to finance it, the bank does not permit negotiating of the rate. The rate offered, based upon the cost of the vehicle, down payment, credit worthiness of the buyer and other variables dictates the interest rate. Many believe this is unfair to the consumer. Question: When parties with unequal power create a contract, should the law more vigorously pro- tect the weaker party? Answer: When two corporations contract, courts generally ignore inequalities of bargaining power unless one party had a huge advantage and used it unfairly. When a corporation deals with a con- sumer, both the UCC and the courts tend to give greater protection to the consumer, though not always. Chapter 1 Introduction to Law 7

Question: Shouldn't a court always look out for a weak party, whether corporate or consumer? Answer: Probably not. The more a court “protects” one party, the more it interferes with the parties' ability to contract. Generally, courts begin with the assumption that adults are able, and entitled, to make their own deals and that they should live with the results. Question: To the extent protections for the consumer or other parties with lesser bargaining position entering into contractual arrangements have been put in place, briefly describe your understanding of the protections the law incorporated. And the rationale for this body of law. Answer: Consumer protection laws, UCC, opinions rendered in cases where blatant abuse occurred.

NET TOURING: Recommend to students that they search for federal and state consumer protection laws, book mark where they located each, and as appropriate retain copies of the references including brief descriptions in their Personal Reflection Journal (PRJ).

Analyzing a Case

Case Summary: Osborne v. Stages Music Hall, Inc.1, p. 9 Facts: Stages Music Hall owned the Metro Club in Chicago. Karl Trujillo and his friend Daniel Hosneola became intoxicated while at the Metro and got into a violent fight with eight of the club’s bouncers. Trujillo, trained in the martial arts, knocked down two of the employees, but the bouncers finally ejected the young men, who remained outside the door, clamoring for readmission. Meanwhile, Lindie Osborne and her friend Michelle Becht were leaving the Metro. As Becht exited, one of the young men slapped her in the face. Osborne hurried outside but as she approached her friend, Trujillo spun on his heel and kicked her in the face. Osborne fell to the ground. The two men left the scene but were later arrested. Osborne suffered two facial fractures that required permanent plates and pins to be inserted in her jaw, which was wired shut for six weeks. She sued Stages, but the trial court gave a directed verdict for Stages, meaning that it dismissed the case. The court declared that Stages had no duty to protect Osborne because the incident took place on a public sidewalk, and because Trujillo’s assault was not foreseeable. Osborne appealed. Issue: Did Stages have a duty to protect Osborne from Trujillo’s attack? Decision: Yes, Stages did have a duty to the plaintiffs. Reversed and remanded. Judge Wolfson said that the determination of whether there is a duty depends upon 1) foreseeability of injury, 2) likelihood of injury, 3) potential burden placed on the defendant, and 34) the consequences of placing that burden on the defendant. Whether the attack takes place inside or outside the club is not the dispositive factor: foreseeability is the key. Here, the assault was foreseeable. The bouncers knew the men were intoxicated and combative. The bouncers ejected the men into an area of the street that the club itself had used earlier in the day to control the crowd. It was reasonably foreseeable that a patron leaving the club through that area might be assaulted. The court did not say precisely what the defendant had to do: perhaps a simple warning to the plaintiffs would have sufficed. Question: What kind of case is this, civil or criminal? Answer: Civil. Question: What is the difference? Answer: In a civil suit, one party is suing the other. In a criminal prosecution, the government is seeking to punish someone for conduct that society will not tolerate. Question: Who is the plaintiff and who the defendant? Answer: Osborne is the plaintiff and Stages the defendant.

1 8 Unit 1 The Legal EnvironmentIntroduction

Question: What is the key issue in this civil suit? Answer: Whether Stages had a duty to protect Osborne. Question: Why does Stages claim it had no duty to Osborne? Answer: The attack took place outside the club, on public property. Question: What did the trial court conclude? Answer: That Stages had no duty. The court dismissed the case. Question: What did the appellate court decide? Answer: That Stages did have a duty. The court reversed and remanded. Question: Why did the court decide that Stages had a duty? Answer: The court said that the exact location of the assault was not critical, especially since the club itself had made use of the “public area” to control the incoming crowds. What really mattered was whether the attack was foreseeable, and the court declared that it was. Question: Why was the attack foreseeable, according to the court? Answer: The bouncers knew the men were drunk and combative, and were still outside trying to re- enter. The bouncers knew the men were dangerous, and realized that other patrons would not be aware of the peril. Question: In your view, did the court rule correctly?

AT RISK. One of the best reasons to read about legal disputes is so you can avoid them. In Preventive Law we focus on how to anticipate problems and steer clear of them. Assume that you are the manager of a club. You know that your bouncers sometimes eject drunken patrons. You do not want a repetition of the Osborne incident. What should you do?

You Be the Judge: McCollum v. CBS, Inc., p. 12 We want 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 place of the court's holding, gives competing arguments for the two sides. The arguments are written by the authors of the text, often based on majority and/or dissenting opinions in the case. We find that this feature generates lively discussions. Since students do not have the “answer,” they are forced to think for themselves. Sometimes we divide the class in half and ask each side to argue for one of the parties. Other times we take a vote on the outcome before and after revealing the court's holding. A third option is to require students to prepare a short paper giving their own “holding.”

Facts: McCollum shot himself while listening to an Ozzy Osbourne record that CBS had produced. The record allegedly advocated suicide. McCollum's parents sued CBS and Osbourne. The trial court dismissed the case, finding that the negligence claim must fail because the harm was unforeseeable. (It also found that the First Amendment protected the defendants.) The parents appealed. Issue: Was McCollum's suicide foreseeable? Answer: The California Court of Appeals affirmed the dismissal of the plaintiffs’ case. The court ruled that the death was not foreseeable. If McCollum's suicide was a response to Osbourne's music, it was an irrational one, which neither defendant could have anticipated. (The court also cited Brandenburg v. Ohio, p.116, ruling that the First Amendment barred a lawsuit over song lyrics, unless the song was intended and likely to cause an imminent suicide.) Question: Isn't this a cold-hearted decision? Why doesn't the court sympathize with the parents' tragedy? Answer: The judges are probably sympathetic, but they must consider more than the plaintiffs' grief. This court was convinced that permitting a negligence claim to go forward here would open the floodgates to countless similar claims of foreseeable harm. Every time anything bad occurred after Chapter 1 Introduction to Law 9

someone had heard a suggestive song, seen a sexually explicit movie, or watched a violent television show, the injured party would claim the damage had been foreseeable. Question: Maybe it really was foreseeable, and maybe it would be good to have more such lawsuits, to control the amount of smut that appears annually in film, television, and popular music. Answer: Maybe, but the court didn't think so. As to any legal issue, a court must draw the line somewhere and say, “This doesn't warrant a trial.” Here, the court is deciding that no jury should hear a case when the harm is so distant and relatively hard to foresee. Free expression, the court's other rationale, is deeply rooted in our law. This court believed the defendants had a broad right to produce material, and consumers an equally strong right to hear what they wanted. The court did not want to establish a precedent that would force other courts to decide what is tasteful, whose standards govern, and when music advocates suicide rather than mocking suicide. Question: Have other bereaved relatives filed suit against entertainment firms? Answer: Yes. The number of plaintiffs and lawsuits in such cases is increasing. The tragic shootings in high schools have spawned numerous lawsuits against film and music producers and video game manufacturers. For example, after three students were gunned down in Paducah, Kentucky, families of the slain children sued producers of The Basketball Diaries, a movie starring Leonardo DiCaprio, claiming that a graphic scene of high school homicide in the movie influenced the 14-year-old who actually killed their children. General Question: Are there any movies you have seen that you believe could cause an unstable youth to hurt someone? Do video games cause increased violence on the playgrounds of elementary schools? If so, what, if anything, should society do about the problem? Should courts be involved? Should Congress? AT RISK: Students should include a risk management policy or statement that would minimize the possibility of repeated similar actions. PARTNER PROJECT: Each student should select a partner, one of whom will represent a Senator from an agriculture state while the other a Representative from a northeastern manufacturing state. The Congress has made a commitment to bipartisanship and working issues out through negotiation rather than filibuster. The issue presented deals with subsidies for farmers in one state. Clearly, this would not benefit the other primarily industrial state nearly as much. Both sides must give in to make the compromise bill pass. Each acknowledges that a financial benefit for an agricultural state would have some derivative benefit to an industrial state, but not quite as much. Remember that the interests of the respective states are being represented but at the same time, a compromise is in the best interests of both. After discussing and researching the issue, each is to jot down a list of arguments for and against the legislation on behalf of their respective state. Next, in collaboration with the partner, a draft bill that would satisfy both should be completed. The bill in summary form will be presented orally to classmates and instructor.

For most of the “You Be the Judge” writing problems we provide the case citation and holding. For this question, of course, there is no definitive answer.

Net Tour Research & Writing assignmentAssignment

The fundamental source of law for the entire country is the U.S. Constitution. The power of the federal government to regulate commerce and business comes from the Commerce Clause. Visit the link to the U.S. Constitution and locate the Commerce Clause. Review the section, and then visit some of the links recommended to expand your understanding of the scope and limitations of the Commerce Clause. TIP: A good resource for starting the investigation can be found at 10 Unit 1 The Legal EnvironmentIntroduction http://straylight.law.cornell.edu/supct/cases/topics/tog_commerce_clause.html. Students should be asked to prepare a brief summary of the Clause, including the scope of authority vested in the federal government under the clause. Pay particular attention to the provision of the clause stating regulation of business between the states. This is a project and research that should be retained in the PRJ since they will refer frequently to this issue throughout the course work. Students should be encouraged to use the following or similar form to analyze the various cases throughout the course: http://www.archives.gov/digital_classroom/lessons/analysis_worksheets/document.html The results of this research Net Tour and written assignments should also be retained in the PRJ. The benefit of this assignment is in giving the students a guided research project, narrowly focused on an issue and developing critical analysis skills in reading and interpreting case opinions. Both legal and social implications should be the focus of the analysis. The students should also be encouraged to form their own opinions, and support them with facts, and law from the readings.

Lesson Bibliography: Hamilton, M. (2004). The Supreme Court Hears Oral Argument on a Possible California "Medical Marijuana" Exception to the Federal Controlled Substances Act. Retrieved form the WWW at http://writ.corporate.findlaw.com/hamilton/20041202.html McCollum v. CBS, Inc., 202 Cal.App.3d 989, 249 Cal. Rptr. 187, 1988 Cal.App.LEXIS 909, California Court of Appeals, 1988 Osborne v. Stages Music Hall, Inc., 312 Ill. App. 3d 141; 726 N.E.2d 728; 2000 Ill. App. LEXIS157; 244 Ill. Dec. 753 (Illinois Court of Appeals 2000)

Ratner, S.R. (2001) Corporations and Human Rights: A Theory of Legal Responsibility. Yale Law Journal, Vol. 111

Net Touring: The U S Constitution is the ultimate source of law under our governmental form and can be located at these links: http://www.archives.gov/national_archives_experience/charters/constitution_q_and_a.html http://www.supremecourtus.gov/opinions/opinions.html

Read about the Supreme Court and Constitutional interpretation at the following website: http://www.supremecourtus.gov/about/constitutional.pdf

Additional Net Touring reference sites and bibliography

Visit the following website and click on the Art and History link. http://www.senate.gov/ Chapter 1 Introduction to Law 11

Visit the following website and explore the various links and sections. http://www.house.gov/Constitution/Constitution.html http://www.findlaw.com/casecode/constitution/

A good resource to explore Supreme Court decision, listed by topic: http://supct.law.cornell.edu/supct/cases/topic.htm A good resource for transcripts, and some videos transmission of current trial: www.courttv.com

Practice Test

Matching Questions Match the following terms with their definitions: (3) A. Statute (5) B. Administrative Agencies (1) C. Common law (2) D. Stare decisis (4) E. United States Constitution 1. Law created by judges. 2. Let the decision stand. 3. A law passed by Congress or a state legislature. 4. The supreme law of the land. 5. The Internal Revenue Service; the Federal Communications Commission; the Federal Trade Commission. True/False Questions Circle true or false: 1. T F The idea that current cases must be decided based on earlier cases is called legal positivism. 2. T F Civil lawsuits are brought to court by the injured party, but criminal cases must be prosecuted by the government. 12 Unit 1 The Legal EnvironmentIntroduction

3. T F Congress established the federal government by passing a series of statutes. 4. T F The federal government has three branches: executive, legislative, and administrative. 5. T F Law is different from morality, but the two are closely linked. Multiple-Choice Questionss 6. More American law comes from one country than from any other. Which country? (a) France. (b) England. (c) Germany (d) Spain (e)Canada 7. UUnder the United States Constitution, power that is not expressly given to the federal government is retained by (a) The courts (b) The Congress (c) The Founding Fathers (d) The states and the people (e) International treaty 8. The 25 nations of the European Union sometimes struggle to create a unified policy that works for all of the countries, while still permitting each member nation to maintain adequate power over its own affairs. With what legal principle are they struggling? (a) Jurisprudence (b) Precedent (c) Strict construction. (d) Federalism (e) Morality 9. Judges use precedent to create what kind of law? (a) Common law (b) Statutes (c) National law (d) Local law (e) Empirical law 10. Rebecca leaves a store at night and enters the store’s parking lot. Before she can reach her car, she is robbed at gunpoint. Rebecca sues the store. When a court decides whether the store had a duty to prevent this harm, what issue will the judges focus on? (a) Federalism (b) Equity (c) Legal realism (d) Morality (e) Foreseeability Chapter 1 Introduction to Law 13

Short Answer 11. 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) ruled that these restrictions violated the law and ordered the hospital to permit the activities in the cafeteria and coffee shop. The NLRB cannot create common law or statutory law. What kind of law was it creating? Do the decisions of such agencies carry the weight of law and therefore become enforceable through court proceedings should a breach occur? The NLRB is an administrative agency. Congress created the NLRB to oversee all aspects of federal law regulating labor-management relations. The NLRB frequently makes rulings like the one described here. In order to enforce its rulings, though, the NLRB often must go to court. 12. Bill and Diane are hiking in the woods. Diane walks down a hill to fetch some fresh water. Bill meets a stranger, who introduces herself as Katrina. Bill sells a kilo of cocaine to Katrina, who then mentions that she enjoys her job at the Drug Enforcement Agency. Diane, heading back to the camp with the water, meets Freddy, a motorist whose car has overheated. Freddy is late for a meeting where he expects to make a $30 million profit; he’s desperate for water for his car. He promises to pay Diane $500 tomorrow if she will give him the pail of water, which she does. The next day, Bill is in jail and Freddy refuses to pay for Diane’s water. Explain the criminal law/civil law distinction and what it means to Bill and Diane. Who will do what to whom, with what results? Bill has a criminal law problem. He will be arrested by Katrina and prosecuted by the federal government. The local United States attorney will be in charge of the case, and he will try to obtain a verdict of guilty against Bill. Bill may be fined and/or sentenced to prison. Diane has a civil dispute with Freddy. Diane, the plaintiff, must file a lawsuit against Freddy, the defendant, seeking money damages of $500. Freddy will not go to jail.

13. The stock market crash of 1929 and the Great Depression that followed were caused in part because so many investors blindly put their money into stocks they knew nothing about. During the 1920s it was often impossible for an investor to find out what a corporation was planning to do with its money, who was running the corporation, and many other vital things. Congress responded by passing the Securities Act of 1933, which required a corporation to divulge more information about itself before it could seek money for a new stock issue. What kind of law did the Congress create? Explain the relationship between voters, Congress, and the law. The Securities Act of 1933 is a statute. A statute is any law passed by a legislative body. Voters elect members of Congress who, at least in theory, respond to demands from the electorate. Congress passes statutes (which are generally signed by the president) and those statutes then govern all of us. We all have a chance to affect the law, and we all are governed by the law.

14. ETHICS Confucius did not esteem written laws, believing instead that good rulers were the best guarantee of justice. Does our legal system rely primarily on the rule of law or the rule of people? Which do you instinctively trust more? Legal realists argue that the “rule of law” is a misleading term. What point are they making, and how does it relate to Confucius’s principles? Confucius himself was an extraordinarily wise man, full of wisdom about life and compassion for his fellow 14 Unit 1 The Legal EnvironmentIntroduction

citizens. Since he was extraordinary, what does that tell us about other rulers by contrast? How does that affect Confucius’s own views? In a sense, legal realists share some ideas with the great Chinese lawgiver. The realists argue that what is written matters far less than who enforces the laws. Confucius also put primary emphasis on having wise leaders. The danger, of course, with relying on a government of people, rather than laws, is that it is difficult to get wise, honest people to lead society and basically impossible to find anyone remotely as good as Confucius. 15. ROLE REVERSAL Each Practice Test contains one ROLE REVERSAL feature, in which we challenge the student to create his or her own exam question. The goal is to think creatively and accurately. Crafting questions is a good way to reinforce understanding, while simultaneously supplying the professor with good exam material. The professor may ask students to submit the questions in writing or electronically, or to prepare an overhead slide. The question should be challenging enough that the average student will need to stop and think, but clear enough that there is only one answer. Useful questions can be formatted as essay, short answer or multiple choices. Notice that some exam questions are very direct, while others require deeper analysis. Here are two examples. The first focuses on a definition. Question: Legal positivism is A. a decision by an appeals court affirming the trial court. B. a decision by an appeals court reversing a trial court. C. a theory of jurisprudence insisting that the law is what the sovereign says it is. D. a theory of law requiring that current cases be decided based on earlier decisions. E. a theory of law requiring that current cases be decided by a majority vote of the judges. As students should know, the correct answer is “c.”

ROLE REVERSAL Exercise: draft a multiple choice question focusing on the powers of the states to regulate commerce OR precedent and stare decisis.

Internet Research Problem Take a look at http://www.courttv.com. Find two current cases that interest you: one civil, one criminal. Explain the different roles played by each type of law, and summarize the issues in the respective cases.x` You can find further practice problems in the Online Quiz at http://beatty.westbuslaw.com or in the Study Guide that accompanies this text.

Load more

  14

Copy Link