CHAPTER 1
INTRODUCTION TO LAW
1-1: Exploring The Law
• 1-1a: The Role of Law in Society
– The strong reach of the law touches nearly
everything we do
– Law is essential. Every society of which we have
any historical record has had some system of law
– Law is fascinating.
– The law is a big part of our lives, and it is wise to
know something about it.
1-1: Exploring The Law
• 1-1b: Origins of Our Law
– Principles and rules of law actually come from many
different sources
– English Roots
• The doctrine of precedent, which developed gradually over
centuries, requires that judges decide current cases based on
previous rulings
– Precedent is the heart of American common law and ensures predictability
– The accumulation of precedent, based on case after case, makes up the
common law (*important note: common law is judge-made law)
– Law in the United States
• American law is blend of English and other principles and a zeal
and determination for change
1-2: Sources of Contemporary Law
• 1-2a: United States Constitution
– One of the most important documents ever written
– Supreme law of the land
– Does three basic things:
• Establishes national government - three branches
• Creates a system of checks and balances among
branches
• Guarantees many basic rights to the American
people
1-2: Sources of Contemporary Law
– Branches of Government
• Legislative – Ability to create new laws
• Executive – Authority to enforce laws
• Judicial – Right to interpret laws and determine their
validity
– Checks and Balances
• President can veto Congressional legislation
• Congress can impeach the President
• Supreme Court can void laws passed by Congress
1-2: Sources of Contemporary Law
Power and Role of Judges?
1-2: Sources of Contemporary Law
–Fundamental Rights
• For the most part they are found in
the Amendments to The Constitution
1-2: Sources of Contemporary Law
• 1-2b: Statutes
– Statute: A law created by a legislature
– Also things such as city ordinances, local laws, etc.
– Federal statutes passed by Congress
• President can veto the bill and it does not become law
unless Congress overrides with a 2/3 majority in each
house
1-2: Sources of Contemporary Law
• 1-2c: Common Law (JUDGE-MADE LAW)
– The principle that precedent is binding on later
cases is stare decisis, which means “let the decision
stand”
– Precedent is only binding on lower courts
– Reliance on precedent over time is what makes the
common law work
• 1-2d: Court Orders
– Judges have authority to issue court orders placing
binding obligations on specific people or businesses
1-2: Sources of Contemporary Law
• 1-2e: Administrative Law
– Administrative agencies do the day-to-day work of
the legislative and executive branches
– These agencies often end up with complex legal
structures of their own
– Agencies have the power to create laws called
regulations
• 1-2f: Treaties
– President can enter treaties, must be ratified by a
two-thirds vote of The United States Senate
1-3: Classifications
• 1-3a: Criminal and Civil Law
– Criminal law: concerns behavior so
threatening that society outlaws it altogether
• The government prosecutes the wrongdoer
• Can be fines, prison time or both
– Civil law: regulates rights and duties between
parties
– Important Point: One event can be the basis
for both civil and criminal lawsuits
1-3: Classifications
• 1-3b: Law and Morality
– Law is different from morality, yet the two are
obviously linked
– The two are linked, but don’t always overlap
perfectly (slavery, segregation, no duty to rescue)
1-4: Jurisprudence
• Jurisprudence – The philosophy of law
• 1-4a: Legal Positivism
– Law is what the sovereign says it is
– The sovereign is the recognized political power
whom citizens obey
– Leaves little room for questions of morality
1-4: Jurisprudence
• 1-4b: Natural Law
– An unjust law is no law at all and need not be
obeyed
– “Good is to be done and promoted, and evil is to
be avoided” – Saint Thomas Aquinas
• 1-4c: Legal Realism
– What really matters is who enforces the law and
by what process
1-5: Working With The Book’s Features
• 1-5a: Analyzing a Case
– Kuehn v. Pub Zone (2003)
1-5: Working With The Book’s Features
• 1-5b: Exam Strategy
– Determine what the issue is and analyze it in a logical,
consistent manner
• 1-5c: You be the Judge
–
–
–
–
Del Lago Partners, Inc. v. Smith (2010)
Soldano v. O’Daniels (1983)
McCollum v. CBS, Inc. (1988)
James v. Meow Media (2002)
CHAPTER 2
ETHICS AND CORPORATE SOCIAL
RESPONSIBILITY
2-1: Why Study Ethics?
• The law dictates how people MUST behave
• Ethics is how people SHOULD behave
2-1: Why Study Ethics?
• Life Principles
– The rules by which you live your life
2-1: Why Study Ethics?
• 2-1a: Ethics in Business
– Shareholders: The owners of the company
– Stakeholders: Includes employees, customers,
and the communities and countries in which a
company operates
– Dilemmas arise when companies consider actions
that would not increase shareholder returns in a
certain or measurable way, but would benefit
other stakeholders
2-1: Why Study Ethics?
• 2-1b: Why Be Ethical?
– Society as a Whole Benefits from Ethical
Behavior
– Ethical Behavior Makes People Happier
• Study revealed that the secret to long-term
happiness is having good relationships with a
spouse, family, and friends
• Difficult to maintain relationships if unethical
– Ethical Behavior Provides Financial Benefits
• A company with a good reputation can pay employees less
and charge consumers more
• Unethical behavior causes financial harm
• Creates a cynical, resentful, and unproductive workforce
2-2: Theories of Ethics
• 2-2a: Utilitarian Ethics
– Correct decision maximizes overall happiness and
minimizes overall pain; producing greatest net
benefit
– Risk management and cost-benefit analyses are
examples of utilitarian business practices
– Critics argue that it is not possible to measure
utility
– Not all lives are of equal value to us
– Focus on outcome can lead to terrible behavior
2-2: Theories of Ethics
• 2-2b: Deontological Ethics
– The duty to do the right thing, regardless of the result
– Categorical Imperative: An act is only ethical if it would
be acceptable for everyone to do the same thing
– Problem with this approach: results do matter
• 2-2c: Rawlsian Justice
– Rawls argued that we should think about what rules for society
we would want if we didn’t know what our place in society
would be
– Believed that society is better off if people have an incentive to
work hard, but we would reward the type of work that provides
the most benefit to the community as a whole
2-2: Theories of Ethics
• 2-2d: Front Page Test
– How would you feel if your actions went viral
• 2-2e: Moral Universalism and Relativism
– Moral Universalism: A belief that some acts are always
right or always wrong
– Moral Relativism: A belief that a decision may be right
even if it is not in keeping with one’s own ethical standards
• Cultural: What is right or wrong depends on the norms and
practices in each society
• Individual: People must develop their own ethical rules
• 2-2f: Ethics Case: Up In Smoke
2-3: Ethics Traps
• 2-3a: Money
– The relationship between money and happiness is complicated
– Good health, deep relationships, not smoking all contribute more to
happiness than money
– The impact of money on happiness seems to disappear when
household income exceeds $75,000
– More money can increase general satisfaction with life
– Higher-income people are more likely to cheat
• 2-3b: Competition
• 2-3c: Rationalization
– More creative people tend to be less ethical because they are better
at rationalizing their bad behavior
– Fudge Factor
– I Did It For Someone Else
– The Slippery Slope
2-3: Ethics Traps
• 2-3d: We Cannot Be Objective About
Ourselves
– In making a decision that affects you, it is
important to remember that you are unlikely to
be objective
• 2-3e: Moral Licensing
– After doing something ethical, many people then
• 2-3f: Conflicts of Interest
2-3: Ethics Traps
•
•
•
•
2-3g: Conformity
2-3h: Ethics Case: Diamonds in the Rough
2-3i: Following Orders
2-3j: Euphemisms and Reframing
– In making ethics decisions, it is important to use
accurate terminology. Anything else is just a
variation on rationalization.
– People’s behavior changes if an event is framed
as a loss rather than a gain
2-3: Ethics Traps
•
•
•
•
•
•
2-3k: Lost in a Crowd
2-3l: Ethics Case: Man Down
2-3m: Short-Term Perspective
2-3n: Ethics Case: Wobbly Platform
2-3o: Blind Spots
2-3p: Avoiding Ethics Traps
– Slow down
– Do not trust your first instinct
– Remember your life principles
2-3: Ethics Traps
• 2-3q: Lying: A Special Case
• 2-3r: Ethics Case: Truth (?) in Borrowing
2-4: Reacting to Unethical Behavior
•
•
•
•
2-4a:
2-4b:
2-4c:
2-4c:
Loyalty
Exit
Voice
Ethics Case: Truth or Consequences
2-5: Applying The Principles
• 2-5a: Personal Ethics in the Workplace
– Should you have different ethics in the workplace
and outside of it
• 2-5b: Ethics Case: Weird Wierdsma
• 2-5c: The Organization’s Responsibility to
Society
• 2-5d: Ethics Case: Breathing the Fumes
2-5: Applying The Principles
• 2-5e: The Organization’s Responsibility to
Employees
• 2-5f: Ethics Case: The Storm After the Storm
• 2-5g: The Organization’s Responsibility to Its
Customers
• 2-5h: Ethics Case: Mickey Weighs In
2-5: Applying The Principles
• 2-5i: Organization’s Responsibility to
Overseas Workers
• 2-5j: Ethics Case: A Worm in the Apple
• 2-5k: Corporate Social Responsibility (CSR)
– An organization’s obligation to contribute
positively to the world around it
• 2-5l: Ethics Case: The Beauty of a Well-Fed
Child
CHAPTER 4
COMMON LAW, STATUTORY LAW,
AND ADMINISTRATIVE LAW
4-1: Common Law
• Common Law: Judge made law
• 4-1a: Stare Decisis
– Stare decisis: Let the decision stand
– Once a court has decided a particular issue, it
will generally apply the same rule in similar
cases in the future
– Precedent: An earlier case that decided the
issue
– Predictability v. Flexibility
4-1: Common Law
• 4-1b: Bystander Cases
– You have no duty to assist someone in peril unless you
created the danger
– Union Pacific Railway Co. v. Cappier (1903)
– Exceptions
• Master-Servant
• Tarasoff v. Regents of The University of California (1976)
– Special relationships such as therapist-patient
4-2: Statutory Law
• 4-2a: Bills
– A proposed statute submitted to Congress or a state legislature
– Two houses (House of Representatives and Senate) – Either can
originate a proposed statute, which is called a bill
– If both houses pass a bill, they send it to president, if he or she signs it,
it becomes law (a statute)
– If president opposes bill, he or she will veto it, and it will not become
law
– Committee Work
• This is where most of the heavy lifting is done
– Reasons for a new bill:
• New issue, new worry
• Unpopular judicial ruling (Congress cannot use statutory law
to overturn a judicial ruling dealing with the constitution)
• Criminal law
4-2: Statutory Law
– 4-2b: Discrimination: Congress and the
Courts
• A crucial issue that showed interplay between
Congress and the Courts
– 4-2c: Debate
• Bills are debated on the floor of each house
– 4-2d: Conference Committee
– Bills are often changed in each house
– Senate-House committee works out
differences
– New modified version of the bill sent to each
house for another vote
4-2: Statutory Law
– 4-2e: Statutory Interpretation
• Court explains precisely what the language
means and how it applies to a given case
• Three primary steps:
– Plain Meaning Rule
– Legislative history and intent
– Public Policy
• Griggs v. Duke Power Co. (1971)
– 4-2f: Changing Times
• Wards Cove Packing v. Atonio (1989)
– 4-2g: Voter’s Role
• Influences legislation and legislatures
4-2: Statutory Law
–4-2h: Congressional Override
• If President Vetoes a bill, Congress can
override the veto if House of
Representatives AND Senate repasses the
bill by a 2/3 margin
4-3: Administrative Law
• 4-3a: Creation of Agencies
– First administrative agency was created to regulate
railroads
– Flexibility v. unreachable by voters
– Classification of Agencies
• Types of Agencies: Executive and Independent
– Some federal agencies are part of the executive branch, while others are
independent agencies
– Enabling Legislation
• Congress creates a federal agency by passing enabling legislation
4-3: Administrative Law
• 4-3a: Power of Agencies
– Rulemaking
• Types of Rules: Legislative and Interpretive
– Legislative Rules
» Much like statutes
– Interpretive Rules
» These rules do not change the law
» They are the agency’s interpretation of what the law
already requires
• How Rules Are Made
– Informal Rulemaking
» Publishes a proposed rule in advance, allows public to
comment
– Formal Rulemaking
» Required to hold a hearing before issuing rule
» Tobacco advertising pictures
4-3: Administrative Law
– Investigation
• Some companies cooperate voluntarily others do not
• Subpoena: An order to appear at a particular place and time.
• Subpoena duces tecum: Requires the person to produce certain
documents or things.
• Information sought by subpoena must be:
– Relevant to lawful agency investigation
– Not unreasonably burdensome
– Not privileged – 5Th Amendment Privileged
• Search and seizure
– United States v. Biswell (1972)
– Adjudication
• To adjudicate a case is to hold a formal hearing about an issue and
then decide it
• Administrative law judge (ALJ)
4-3: Administrative Law
• 4-3c: Limits on Agency Power
– Statutory Control
• Enabling legislation, Administrative Procedure Act
– Political Control
• Budget and executive branch oversight
– Judicial Review
• Standard on Review
– Court generally defers to agency on fact-finding as long as there is substantial
evidence to support the decision
– Courts will often defer to an agency’s interpretation of the law
– Federal Communications Commission v. Fox Television Stations, Inc. (2012)
– Informational Control and the Public
• Freedom of Information Act
– American Civil Liberties Union v. United States Department of Justice (2016)
• Privacy Act
CHAPTER 5
CONSTITUTIONAL LAW
5-1: Who Will Have Power?
• 5-1a: Overview
– The Constitution of The United States is the
greatest legal document ever written
– Drafted in 1787
– It is not a perfect document – has been
amended 27 times
– The Constitution is relatively brief – this
brevity and flexibility were necessary for the
document to survive
5-1: Who Will Have Power?
• 5-1b: Creating the Constitution: Important
Principles
– United States was the first modern nation founded on the
idea that people could govern themselves, democratically
– Articles of Confederation had problems
– 1787 – States sent a group of 55 delegates to Philadelphia
to amend the Articles of Confederation – instead they
drafted a new document
– The Constitution is a series of compromises about power
(Federalists v. Antifederalists)
5-1: Who Will Have Power?
– Separation of Powers
• Article I of the Constitution created a Congress, which was to have
legislative power (lawmaking power)
• Article II of the Constitution created the office of the President,
defining the scope of executive power (enforcement power)
• Article III established judicial power by creating the Supreme Court
and permitting additional federal courts (interpretive power)
• Each branch is designed to be independent and equal and to act as
a check and balance on the others
– Individual Rights
• The original Constitution was silent about the rights of citizens
• In 1791, the first 10 amendments, known as the Bill of Rights, were
added to the Constitution, guaranteeing many liberties directly to
individual citizens
5-1: Who Will Have Power?
• 5-1c: Powers Granted
– Congressional Power
• Article I created Congress with its two houses
• Representation in the House of Representatives (435
voting members) is proportionate with a state’s
population
• Each state elects two Senators (100 total)
• Congress’ power is a specifically enumerated in the
Constitution
– Article I, Section 8 of the Constitution lists the 18 types of
statutes that Congress is allowed to pass
– The Tenth Amendment says “All powers not delegated to the
United States by the Constitution…are reserved to the States”
5-1: Who Will Have Power?
• Interstate Commerce
– This is the MOST important part of the Constitution for business
– “The Congress shall have power to regulate commerce with foreign nations,
and among the several states.” This is the Commerce Clause
– International Commerce – Exclusive Power of federal government
– Domestic Commerce – Concurrent Power between state government and
federal government
» Positive Aspect: Congressional Power
» Negative or Dormant Aspect: A limit on the states
– Substantial Effect Rule
» Wickard v. Filburn (1942)
• Congress may regulate any activity that has a substantial
economic effect on interstate commerce
» United States v. Lopez (1995)
» National Federation of Independent Business v. Sebelius (2012)
5-1: Who Will Have Power?
• State Legislative Power
– The “dormant” or “negative” aspect of the Commerce
Clause governs states efforts to regulate interstate
commerce
– The dormant aspect holds that a state statute that
discriminates against interstate commerce is almost
always unconstitutional
– Granholm v. Heald (2005)
• Supremacy Clause
– Article VI of the Constitution
– The Supremacy Clause states that the
Constitution, and federal statutes and treaties,
shall be the supreme law of the land
5-1: Who Will Have Power?
– Executive Power
• Article II of the Constitution defines the executive power
• The President’s most basic job function is to enforce the nation’s laws
• Appointment
– The President nominates the heads of most administrative agencies
• Legislation
– The President and his or her advisers propose bills to Congress
– The President also has power to veto bills
• Foreign Policy
– The President conducts the nation’s foreign affairs
– The President is the commander in chief of the armed forces
– Article II does not give the President the power to declare war – only the Congress may
do that
5-1: Who Will Have Power?
– Judicial Power
• Article III of the Constitution creates the Supreme Court and
permits Congress to establish lower courts within the federal court
system
• Adjudicating Cases
– The federal court system hears both criminal and civil cases
• Judicial Review
– Marbury v. Madison (1803)
– Judicial review refers to the power of federal courts to declare a statute or
governmental action unconstitutional and void
– Kennedy v. Louisiana (2008)
– Youngstown Sheet & Tube Co. v. Sawyer (1952)
• Judicial Activism v. Judicial Restraint
– Judicial activism: A court’s willingness to decide issues on constitutional
grounds
– Judicial restraint: A court’s attitude that it should leave lawmaking to
legislators
5-2: Protected Rights
• Constitutional rights generally protect
only against governmental acts. The
Constitution generally does not protect
us from conduct of private parties, such
as corporations or other citizens.
• Constitutional protections apply to
federal, state and local governments
5-2: Protected Rights
• 5-2a: First Amendment
– “Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and petition the
Government for redress of grievances”
5-2: Protected Rights
– Freedom of Religion: The Establishment and Free
Exercise Clauses
• The Establishment Clause
– Requires a separation of church and state
– To comply with the Establishment Clause, a law must meet
the following three requirements:
» It must have a secular (non-religious) purpose
» It must not have a primary effect of advancing or
inhibiting religion
» It must not foster excessive entanglement of government
with religion
5-2: Protected Rights
– The Free Exercise Clause
» Prohibits the government from prohibiting or penalizing
particular religious beliefs or practices, no matter how
unpopular
» Any law regarding a particular religious practice must be
religiously neutral and generally applicable, displaying
neither approval nor disapproval of a religion
» Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission (2018)
5-2: Protected Rights
• First Amendment: Freedom of Speech
– In general, we expect our government to let people speak and
hear whatever they choose
– Texas v. Johnson (1989)
» “If there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit
the expression of an idea simply because society finds the
idea itself offensive or disagreeable.” - Justice Brennan,
Texas v. Johnson
5-2: Protected Rights
– Political Speech
• Given the highest level of protection
• May not be barred even when offensive or
outrageous
• Political speech is protected unless it is intended
and likely to create imminent lawless action
– Time, Place and Manner
• Even when speech is protected, the government
may regulate the time, place and manner of such
speech
– Campus Speech Codes and Free Speech Zones
5-2: Protected Rights
– Morality and Obscenity
• Obscenity has never received constitutional protection
• What is obscene?
– Miller v. California (1973)
» Whether the average person, applying contemporary
community standards, would find that the work, taken as
a whole, appeals to the prurient interest;
» Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law; and
» Whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value
– Luke Records, Inc. v. Navarro (1992)
– Restrictions of material online
5-2: Protected Rights
–Commercial Speech
• Speech that has a dominant theme to
propose a commercial transaction
• Commercial speech that concerns an illegal
activity or misleads consumers may be
outlawed altogether
• The government may regulate commercial
speech provided that the rules are
reasonable AND directly advance a
legitimate governmental goal
5-2: Protected Rights
• 5-2b: Fifth Amendment: Due Process
and the Takings Clause
– “No person shall be…deprived of life,
liberty, or property without due process of
law; nor shall private property be taken for
public use, without just compensation” –
Fifth Amendment
– Due process protections apply to the
government in civil and criminal matters
5-2: Protected Rights
– Procedural Due Process (civil)
• Before depriving anyone of liberty or property,
the government must go through certain
procedures to ensure that the result is fair
– The Takings Clause
• When the government takes property for public
use, such as to build a new highway, it has to pay
a fair price
– Substantive Due Process
• Some rights are so fundamental that the
government may not take them from us at all
5-2: Protected Rights
– Procedural Due Process (civil)
• Procedural Due Process: The doctrine that ensures that
before the government takes liberty or property, the
affected person has a fair chance to oppose the action
• Two step analysis:
– Is the government attempting to take liberty or property?
– If so, how much process is due?
» What sort of hearing the government must offer depends upon how
important the property or liberty interest is and on whether the
government has a competing need for efficiency
» Must have a neutral fact finder
• Attachment of Property
• Government Employment
• Academic Suspension
5-2: Protected Rights
– The Takings Clause
• The Takings Clause prohibits a state from taking
private property for public use without just
compensation
• Eminent Domain: The power of the government to
take private property for public use
• Government can “take” land even without title
actually changing hands
– Before a government may require an owner to dedicate
land to a public use, it must show that this owner’s
proposed building requires this dedication of land
• Kelo v. City of New London, Connecticut (2005)
5-2: Protected Rights
–Substantive Due Process
• Substantive Due Process: A form of due process that
holds that certain rights are so fundamental that the
government may not eliminate them
• Court looks at the substantive rights impacted by laws
5-2: Protected Rights
• 5-2c: Fourteenth Amendment: Equal
Protection Clause
– The Fourteenth Amendment provides that
“No State shall…deny to any person within
its jurisdiction the equal protection of the
laws”
– Generally speaking, governments must
treat people equally
5-2: Protected Rights
– Minimal Scrutiny: Economic and Social Relations
• Almost always upheld – presumed valid
• Upheld if rationally related to a legitimate goal
– Intermediate Scrutiny: Gender
• Sometimes upheld, but courts are increasingly nullifying these
• Must substantially relate to important government objectives to
be upheld
– Strict Scrutiny: Race, Ethnicity, and Fundamental Rights
• Almost never upheld – presumed invalid
• Any government action that intentionally discriminates against
racial or ethnic minorities, or interferes with a fundamental right,
is presumed invalid
• The law will be upheld only if it is necessary to promote a
compelling state interest and this is called strict scrutiny
– Obergefell v. Hodges (2015)
5-2: Protected Rights
• Private Regulations
– Common Interest Developments
CHAPTER 6
DISPUTE RESOLUTION
Introduction
• Dispute Prevention: You are much better
off trying to prevent disputes from arising
in the first place, but this takes careful
planning
• Litigation: The process of filing claims in
court and ultimately going to trial
• Alternative Dispute Resolution: Any other
formal or informal process used to settle
disputes without resorting to trial
6-1: Court Systems
• 6-1a: State Courts
– Trial Courts
• One judge and often (but not always) a jury
• Trial courts determine the facts of a particular
dispute and apply to those facts the law given
by earlier appellate court decisions
• Courts must have subject matter and personal
jurisdiction. Jurisdiction is a court’s power to
hear a case
6-1: Court Systems
– Subject Matter Jurisdiction: A court’s
authority to hear a particular type of case
• Trial Courts of Limited Jurisdiction
• Trial Courts of General Jurisdiction
– Personal Jurisdiction: The legal authority of a
court to require the defendant to stand trial,
pay judgments, and the like
6-1: Court Systems
– Personal Jurisdiction generally exists if:
• For individuals, the defendant is a resident of the
state in which the lawsuit is filed. For
companies, the defendant is doing business in
that state
• Defendant takes a formal step to defend a
lawsuit
• A summons is served on a defendant in the
jurisdiction where personal jurisdiction is being
sought
• A long-arm statute applies
– Minimum contacts with a state
– International Shoe Co. v. State of Washington (1945)
6-1: Court Systems
– Appellate Courts
• Appeals Court: Higher courts that review the trial
record to see if the court made errors of law
• Court of Appeals
– Intermediate level of appeals court
– The party filing the appeal is the appellant
– The party opposing the appeal is the appellee
– The decision may be affirmed or reversed
• State Supreme Court
– Highest court in the state
– Has the final word on state law
6-1: Court Systems
• 6-1b: Federal Courts
– Federal Question Cases
• A claim based on the United States Constitution, a
federal statute, or a federal treaty
• Applies even if there is not diversity jurisdiction
– Diversity Cases
• Applies even if no federal question is involved
• Plaintiff and defendant are citizens of different
states AND
• The amount in dispute exceeds $75,000
• *For diversity purposes, a corporation is a citizen of
the state in which it is incorporated AND the state
in which it has its principal place of business
6-1: Court Systems
– Trial Courts
• United States District Court
• Other Trial Courts
– There are other specialized trial courts
• Judges
– The President of The United States nominates
all federal court judges, from district to
Supreme Court
– Nominees must be confirmed by the Senate
– Once confirmed, federal judges serve for “life in
good behavior”
6-1: Court Systems
–Appellate Courts
• United States Courts of Appeals
–Intermediate appeals courts
–13 Circuit courts of appeal
• United States Supreme Court
–Highest court in the country
–Nine justices
–Writ of certiorari: A petition asking the
Supreme Court to hear a case
6-2: Before Trial
• 6-2a: Pleadings
– Pleadings: The documents that begin a lawsuit, consisting
of the complaint, the answer, and sometimes a reply
– Complaint
• A short, plain statement of the facts that plaintiff is alleging and
the legal claims they are making
• Filed with the court
• Purpose is to inform the defendant of the claims and notify him of
his need to come to court to protect his interests
6-2: Before Trial
– Service
• A sheriff or constable will deliver the complaint and a summons (a
document ordering the defendant to answer the complaint within
20 days) to the defendant
– Answer
• The defendant’s brief reply to each of the allegations in the
complaint
• The answer tells the court and the plaintiff exactly what issues are
in dispute
• Default Judgment: A decision that the plaintiff wins without trial
because the defendant failed to answer in time
6-2: Before Trial
– Counter-Claim
• Counter Claim: A second lawsuit (one by the defendant against the
plaintiff)
• Reply: an answer to a counterclaim
– Class Actions
• Class Action: One plaintiff represents the entire group of plaintiffs,
including those who are unaware of the lawsuit or even unaware they
were harmed
– Judgment on the Pleadings
• Motion: A formal request to the court that it take some step or issue
some order
• Motion to Dismiss: A request that the court terminate a case because the
law does not offer a legal remedy for the plaintiff’s problem
• Party can file a motion to dismiss the case based solely on the pleadings
• Ashcroft v. Iqbal (2009)
– A valid complaint must show the court that the plaintiff’s claims are plausible, not
just possible
6-2: Before Trial
• 6-2b: Discovery
– The critical, pre-trial opportunity for both parties to learn the
strengths and weaknesses of the opponent’s case
– Parties are entitled to discover anything that could reasonably
lead to valid evidence
– Motion for protective order: request that the court limit
discovery
– Interrogatories: Written questions that must be answered in
writing and under oath
– Depositions: One party’s lawyer questions the other party, or a
potential witness, under oath
– Production of Documents and Materials
– Physical and Mental Examination
– E-Discovery
6-2: Before Trial
• 6-2c: Summary Judgment
• Summary Judgment: A ruling by the court
that no trial is necessary because essential
facts are not in dispute
• Jones v. Clinton (1998)
– 6-2d: Final Preparation
6-3: The Anatomy of a Trial and
Appeal
• 6-3a: The Trial
– Our system of justice assumes that the best way to bring out the
truth is for the two contesting sides to present the strongest
case possible to a neutral fact finder
– Right to Jury Trial
• As a general rule, both plaintiff and defendant have a right to demand a
jury trial when the lawsuit is one for money damages
• The parties can agree to waive the right to a jury trial, and if the plaintiff is
seeking an equitable remedy, there is not a jury
6-3: The Anatomy of a Trial and
Appeal
– Voir dire: The process of selecting a jury is called
Voir Dire which means “to speak the truth.”
• Challenges for cause: A claim that a juror has
demonstrated probable bias
• Peremptory challenges: The right to excuse a juror for
virtually any reason
– Opening Statements
• Each attorney makes an opening statement to the jury,
summarizing the proof he or she expects to offer
6-3: The Anatomy of a Trial and
Appeal
– Burden of Proof
• Civil case – to prove case by a preponderance of the
evidence. Plaintiff must prove that its version of the
facts is at least slightly more likely than the defendant’s
version.
• Criminal case – the prosecution must demonstrate
beyond a reasonable doubt that the defendant is guilty
– Plaintiff’s Case
• Plaintiff puts their case on first
• Direct examination: Lawyer asks questions of her own
witness
• Cross examination: Lawyer asks questions of the
opposing witness
6-3: The Anatomy of a Trial and
Appeal
– Rules of Evidence
• The law of evidence determines what questions
a lawyer may ask and how the questions are to
be phrased, what answers a witness may give,
and what documents may be introduced
– Motion for Directed Verdict
• Permissible only if the evidence so clearly
favors the defendant that reasonable minds
could not disagree on it
6-3: The Anatomy of a Trial and
Appeal
– Defendant’s Case
• The defendant now puts on his or her case
– Closing Argument
• Both lawyers sum up their case to the jury
– Jury Instructions
• Judge instructs jury as to its duty
• Jury told that they are to evaluate the case
based only on the evidence they heard at trial
• Judge explains the law and the burden of proof
6-3: The Anatomy of a Trial and
Appeal
– Verdict
• Jury deliberates informally
• Criminal – need unanimity
• Civil – may not need to be unanimous
– Motions After the Verdict
• Judgment non obstante veredicto (JNOV),
meaning a judgment notwithstanding the jury’s
verdict
– Ferlito v. Johnson & Johnson Products, Inc.
(1991)
• New trial
6-3: The Anatomy of a Trial and
Appeal
• 6-3b: Appeals
– Parties file briefs with the appeals court
– Oral arguments may be held
– Appeals Court Options
• Affirm: Allow the decision to stand
• Modify: Affirm the outcome but with changes
• Reverse and remand: Nullify the lower decision and
return the case for reconsideration or retrial
• Reverse: Turn the loser into the winner
• Harmless error: A mistake by the trial judge that was
too minor to affect the outcome
6-4: Alternative Dispute Resolution
• 6-4a: Negotiation
– Can happen either personally or through lawyers
• 6-4b: Mediation
– Neutral person, called the mediator, attempts to
coax the two disputing parties toward a voluntary
settlement
– The mediator does not issue a decision
– Offers the strongest “win-win” potential
6-4: Alternative Dispute Resolution
•
6-4c: Arbitration
– Parties agree to bring in a neutral third party, and the arbitrator has the power to impose an
award
– Usually faster and cheaper than litigation
– Parties give up some rights that litigants would have (ex: discovery)
– Traditionally, parties signed arbitration agreements after some incident took place
– Parties are increasingly agreeing in advance to arbitrate disputes that arise
– Mandatory arbitration
•
•
Both parties must mutually promise to submit disputes to arbitration
Must have a neutral forum to resolve disputes and adopt sufficient rules to govern a proceeding
– Courts generally enforce arbitration agreements if they meet the following three conditions:
•
•
•
The parties must freely and knowingly agree
The parties must mutually promise to submit disputes to arbitration
The arbitration clause must provide a neutral forum to resolve disputes and adopt fair rules for the
proceeding
– John Doe #1, et al. v. The College Board (2020)
CHAPTER 8
INTENTIONAL TORTS AND BUSINESS
TORTS
Introduction
• Tort
– Borrowed from the French, meaning “wrong”
– Tort: A violation of a duty imposed by the civil law
• Criminal Law v. Tort Law
– Criminal – government prosecutes, fines go to state, jail
time a possibility
– Tort – individual hires own attorney, plaintiff gets money,
no jail time
– Keep in mind that an event can give rise to both criminal
and tort law claims
Introduction
• Contract Law v. Tort Law
– Contract dispute is over an agreement that at least two
people have already made
– In a tort case there is usually no “deal” between people,
the plaintiff argues that the law itself creates a duty that
was breached
• Intentional Torts (Chapter 8)
– Intentional Torts: Harm caused by a deliberate action
– Does not mean that defendant intended to harm plaintiff
• Negligence, Strict Liability and Product Liability
(Chapter 9)
– Harm caused by neglect and oversight rather than by
deliberate conduct
8-1: Intentional Torts
• 8-1a: Defamation
– The First Amendment right to free speech is not
absolute
– The law of defamation concerns false statements
that harm someone’s reputation
– Defamatory statements can be written or spoken
• Libel: Written defamation
• Slander: Oral defamation
8-1: Intentional Torts
–Four Elements to a Defamation Claim
(Plaintiff Must Prove These):
• Defamatory Statement
• Falsity
• Communicated to at least one person other than the
plaintiff
• Injury
– Slander per se: When oral statements relate to criminal or sexual
conduct, contagious diseases, or professional abilities, they are
assumed to be harmful to the subject’s reputation
– Libel per se: When written statements relate to criminal or sexual
conduct, contagious diseases, or professional abilities, they are
assumed to be harmful to the subject’s reputation
8-1: Intentional Torts
– Opinion
• Opinion is generally a valid defense in a defamation suit
because it cannot be proven true or false
• Bonus Case: Yeagle v. Collegiate Times (1998)
• Bonus Case: Knievel v. ESPN (2005)
• Bonus Case: Eminem “Brain Damage”
8-1: Intentional Torts
– Public Personalities
• Public officials (police chief) and public figures (movie
stars)
• New York Times Co. v. Sullivan (1964)
– A public official or public figure can win a defamation case
only by proving actual malice by the defendant
– Actual malice means that the defendant knew the statement
was false or acted with reckless disregard of whether it was
false or not
– Online Defamation
8-1: Intentional Torts
– Privilege
• Absolute privilege: A witness testifying in a court or
legislature may never be sued for defamation
• Qualified privilege: Parties that have a legitimate need
to exchange in formation and do so in good faith have a
defense to a claim of defamation
– Reporting of criminal tips
– Employment references
8-1: Intentional Torts
• 8-1b: False Imprisonment
– False imprisonment: The intentional restraint of
another person without reasonable cause and
without consent
– Generally, a store may detain a customer or
worker for alleged shoplifting provided there is a
reasonable basis for the suspicion and the
detention is done reasonably
8-1: Intentional Torts
• 8-1c: Intentional Infliction of Emotional
Distress
• Intentional infliction of emotional distress: An
intentional tort in which the harm results from
extreme and outrageous conduct that causes
serious emotional harm
• Ford Motor Credit Co. v. Sheehan (1979)
• Turley v. ISG Lackawanna, Inc. (2014)
• Jane Doe and Nancy Roe v. Lynn Mills (1995)
• Snyder v. Phelps (2011)
8-1: Intentional Torts
• 8-1d: Battery and Assault
– Battery: An intentional touching of another person in a
way that is harmful or offensive
– Assault: An act that makes a person reasonably fear an
imminent battery
• 8-1e: Trespass, Conversion and Fraud
– Trespass
• Trespass: Intentionally entering land that belongs to someone
else or remaining on the land after being asked to leave
• “Intentionally” means you deliberately entered the land
8-1: Intentional Torts
– Conversion
• Conversion: Taking or using someone’s personal
property without consent
• Personal property is any possession other than land or
structures permanently attached to land
– Fraud
• Fraud: Injuring another person by deliberate deception
8-2: Damages
• 8-2a: Compensatory Damages
• Compensatory damages: Money intended restore a plaintiff to
the position he was in before the injury
• Single recovery principle: Requires a court to settle the matter
once and for all by awarding a lump sum for past and future
expenses
• George Grubbs Enterprises v. Bien (1994)
• 8-2b: Punitive Damages
• Punitive Damages: Damagers that are intended to punish the
defendant for conduct that is extreme and outrageous
• State Farm v. Campbell (2003)
• Boeken v. Philip Morris Incorporated (2005)
• 8-2c: Tort Reform and The Exxon Valdez
8-3: Business Torts
• 8-3a: Tortious Interference With Business Relations
– Healthy competition becomes illegal interference
– Tortious interference with a contract
– Plaintiff must establish:
• There was a contract between plaintiff and a third party;
• Defendant knew of the contract;
• The defendant improperly induced the third party to breach the contract
or made performance of the contract impossible; and
• There was injury to the plaintiff
– Tortious interference with a prospective advantage
• A plaintiff who has a definite and reasonable expectation of
obtaining an economic advantage may sue a corporation that
maliciously interferes and prevents the relationship from
developing
• The action of defendant generally has to be independently illegal
• Carvel v. Noonan (2004)
8-3: Business Torts
– 8-3b: False Advertising
• The Lanham Act protects businesses from the unfair
competition of false or misleading advertisements intended
to hurt another business
• To win a case, a plaintiff must prove:
• Defendants made false or misleading fact statements about its
product or those of a competitor;
• The statements were material and likely to influence purchasing
decisions;
• Defendants used the statements in commercial advertising or
promotion; and
• The statement created the likelihood of harm
• Molson Coors Beverage Company USA LLC v. Anheuser-Busch
Companies, LLC (2020)
CHAPTER 9
NEGLIGENCE, STRICT LIABILITY, AND
PRODUCT LIABILITY
9-1: Negligence
• Harm arises by accident
• Palsgraf v. Long Island Railroad Co. (1928)
• Five Elements of Negligence (MUST have all 5)
– Duty of Due Care: Defendant had a legal responsibility to
the plaintiff
– Breach of Duty: Defendant breached her duty of care or
failed to meet her legal obligations
– Factual Cause: Defendant’s conduct actually caused the
injury
– Proximate Cause: It was foreseeable that conduct like the
defendant’s might cause this type of harm
– Damages: Plaintiff has actually been hurt or has actually
suffered a measurable loss
9-1: Negligence
• 9-1a: Duty of Due Care
– Each of us has a duty to behave as a reasonable
person would under the circumstances
– Did the defendant have a duty of care to the injured
person?
– Generally, the standard is “foreseeability”
– If the defendant could have foreseen injury to a
particular person, she has a duty to him
– Bonus Case: Otis Engineering Corp. v. Clark (1983)
9-1: Negligence
–Special Duty: Professionals
• While on the job, a person at work must
act as a reasonable person in that
profession
9-1: Negligence
– Special Duty: Landowners
• Lowest Liability: Trespassing Adults
– Trespasser: A person on another’s property without consent
– Only liable for intentional injuries or other gross misconduct
• Mid-Level Liability: Trespassing Children
– The law makes exceptions when trespassers are children
– Attractive nuisances
• Higher Liability: Licensee
– Licensee: A person on another’s land for her own purposes but with
the owner’s permission
– Entitled to a warning about hidden dangers that the owner knows
about
• Highest Liability: Invitee
– Invitee: A person who has a right to enter another’s property
because it is a public place or business open to the public
– The owner has a duty of reasonable care to the invitee
9-1: Negligence
– Special Duty: Universities
• The Regents of the University of California v. Superior Court of Los
Angeles County (2018)
– Colleges are in a special relationship with their enrolled students only in the
context of school-sponsored activities over which the college has some
measure of control
– Colleges have a duty to act with reasonable care when aware of foreseeable
threat of violence in the curricular setting
• Ethics: Hernandez v. Arizona Board of Regents (1994)
9-1: Negligence
• 9-1b: Breach of Duty
– Courts apply the reasonable person
standard: a defendant breaches his duty of
due care by failing to behave the way a
reasonable person would have under
similar circumstances
– Professionals will be held to a higher
standard when acting in their professional
capacity
9-1: Negligence
–Negligence Per Se
• When a legislature sets a minimum
standard of care for a particular activity,
in order to protect a certain group of
people, and a violation of the statute
injures a member of that group, the
defendant has committed negligence per
se
• A plaintiff who can show negligence per
se need not prove breach of duty
9-1: Negligence
• 9-1c: Causation
– Factual Cause
• If the defendant’s breach led to the ultimate harm, it is
the factual cause
– Proximate Cause
• For the defendant to be liable, the type of harm must
have been reasonably foreseeable
• Resnick v. AvMed, Inc. (2012)
9-1: Negligence
– Res Ipsa Loquitur (“the thing speaks for itself”)
• Res ipsa loquitur: The facts imply that the defendant’s negligence
caused the accident
• Normally, a plaintiff must prove factual cause and foreseeable type
of harm in order to establish negligence, but res ipsa loquitur
requires the defendant to show that he or she did not cause the
harm
• Dramatically shifts the burden of proof from plaintiff to defendant
• Applies only when:
– The defendant had exclusive control of the thing that caused the harm
– The harm normally would not have occurred without negligence
– The plaintiff had no role in causing the harm
• Brumberg v. Cipriani USA, Inc. (2013)
9-1: Negligence
• 9-1d: Damages
– A plaintiff must prove that he or she has been injured or had
some kind of measurable losses
– The plaintiff must prove persuade the court that he has suffered
harm that is genuine, not speculative
– A court must decide the full extent of present and future
damages
– Generally compensatory damages
– In rare cases, punitive damages may be awarded
– Bonus Topic: Bystander Cases
• Ra v. Superior Court (2007)
– Plaintiff must prove
» Closely related to the injury victim
» Is present at the scene of the injury-producing event at the time it occurs and is then
aware that is causing injury to the victim
» As a result suffers serious emotional distress
9-1: Negligence
• 9-1e: Defenses
– Contributory and Comparative Negligence
• Under the theory of contributory negligence, if the plaintiff is
even slightly negligent, she recovers nothing
• Under the theory of comparative negligence, a plaintiff may
generally recover even if she is partially responsible. The jury will
be asked to assess the relative negligence of the two parties
– Assumption of the Risk
• Assumption of the Risk: A person who voluntarily enters a
situation that has an obvious danger cannot complain if she is
injured
• Only applies to risks that are inherent in an activity
• Do NFL Football Players assume the risks?
• What Goes Around......
• Not funny, Don't Laugh
• Truong v. Nguyen (2007)
9-2: Strict Liability and Product
Liability
• 9-2a: Strict Liability
– Some activities are so naturally dangerous that the law
places an especially high burden on anyone who engages
in them
– Strict Liability: A branch of tort law that imposes a much
higher level of liability when harm results from
ultrhazardous acts or defective products
– Ultrahazardous Activity
• A defendant engaging in an ultrahazardous activity is almost
always liable for any harm that results
• Plaintiffs do not have to prove duty, breach or foreseeable harm
• The “reasonable person” rule is irrelevant
• New Jersey Department of Environmental Protection v. Alden
Leeds, Inc. (1998)
9-2: Strict Liability and Product
Liability
• 9-2b: Product Liability
– Negligence
• In negligence cases concerning goods, plaintiffs
typically raise one or more of these claims:
– Negligent design
– Negligent manufacture
– Failure to warn
9-2: Strict Liability and Product
Liability
– Strict Liability for Defective Products
• In strict liability, the injured person need not prove that
the defendant’s conduct was unreasonable (in a
negligence case, the injured buyer must demonstrate
that the seller’s conduct was unreasonable)
• The injured person must show only that the defendant
manufactured or sold a product that was defective and
that the defect caused harm
9-2: Strict Liability and Product
Liability
• These cases generally involve:
– One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or his property is subject to
liability, if:
» Seller is in the business of selling such a product
» Product is expected to and does reach the user or consumer
without substantial change in the condition in which it is sold
– The rule stated above applies although:
» Seller has exercised all possible care in the preparation and
sale of his product – notice it does not say reasonable care
» The user or consumer has not bought the product from or
entered into any contractual relation with the seller
• Daniell v. Ford (1984)
9-2: Strict Liability and Product
Liability
• 9-2c: Contemporary Trends
– Two tests for design and warning cases:
• Consumer expectation test: A court finds the
manufacturer liable for defective design if the product
is less safe than a reasonable consumer would expect
• Risk-utility test:
–
–
–
–
–
Value of the product
Gravity, or seriousness, of the danger
Likelihood that such a danger will occur
Mechanical feasibility of a safer alternative design, and
Adverse consequences of an alternative design
9-2: Strict Liability and Product
Liability
– Tort Reform
• About two-thirds of states have passed at least some limits
on damages in tort actions
• About one-third of states have created new rules of
particular kinds of product liability (unavoidably unsafe
prescription drugs for example)
– Time Limits: Statutes of Limitations and Statutes of
Repose (possible defenses)
• Statute of limitations requires that a lawsuit be brought
within a specified time period from when the defect is
discovered or should have been discovered
• Statute of repose places an absolute limit on when a lawsuit
may be filed, regardless of when the defect is discovered