Business Law I
Instructor: Dean R. Poirier
(dpoirier@moc.edu)
Mount Olive College

Course Objective
• To provide students with a general knowledge of the legal system, of the criminal & civil liability of business entities and of individuals doing business, and of contract law and sales law.

“A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.”

Definition of Law
But as Professor Harold Berman asserts “Law is not only a body of rules; it is people legislating, adjudicating, administering, negotiating
– it is a living process of allocating rights and duties and thereby resolving conflicts and creating channels of cooperation.”

Common Legal Values?
Professor Berman also asserts that there 4 common legal values or “legal emotions” that any human society shares. These are:
1) a sense of rights and duties
2) a right to an impartial hearing
3) an aversion to an inconsistent application of the rules and a desire for equal treatment
4) fidelity to the law and abhorrence of illegality
Do you agree?

The Rule of Law
The Rule of Law (Objective Standard) vs. The
Rule of Men (Subjective Standard)
Under the concept of the Rule of Law, the law:
1. represents the “will of the people”
2. is generally & equally applicable to all (i.e.
No one is “above the law”)

The Rule of Law
Rule of law "means that a government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge" -
Hayek, Friedrich Hayek, in The Road to
Serfdom , Chicago: University of Chicago
Press, 1994, p.80.

The Rule of Law
• In ancient Athens, Solon is said to have given the people "equal laws for the noble and the base" and thereby "not so much control of public policy as the certainty of being governed legally in accordance with known rules.” ( Friedrich A. Hayek,
Origins of the Rule of
Law )

The Rule of Law
• Aristotle said “"it is more proper that the law should govern than any of the citizens," that the persons holding supreme power
"should be appointed only guardians and servants of the law," and that "he who would place supreme power in mind, would place it in God and the laws ( Friedrich A. Hayek,
Origins of the Rule of Law )

The Rule of Law
• In 390, Bishop
Ambrose, of Milan, forced Emperor
Theodosius to repent from his vindictive massacre of 7,000 people based on the idea that under the influence of Christianity, nobody, not even the
Roman emperor, was above the law.

The Rule of Law

The English Petition of Grievances of 1610, provoked by new regulations issued by the king for building in London and prohibiting the making of starch from wheat, states that, among all the traditional rights of British subjects,
"there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government …Out of this root has grown the indubitable right of the people of this kingdom, not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament”. ( Friedrich A. Hayek,
Origins of the Rule of Law )

The Rule of Law
“ In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men .” – Constitution of the
Commonwealth of Massachusetts as drafted by John Adams in 1780

“No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it.” -
President Theodore
Roosevelt

"No person is above the law, and that means the president and that means the
Supreme Court." -
Supreme Court Justice
Samuel A. Alito, Jr.
(said during his confirmation hearings)

“When the
President does it, that means it is not illegal” - President
Richard Nixon

Note that the word “tyranny”, associated with cruel, oppressive and unjust rule, comes from the
Greek term for "secular rule“
(κοσμικός κανόνας), which means rule by men instead of the rule of law.
‘‘history has informed us that bodies of men as well as individuals are susceptible of the spirit of tyranny.’’ –
Thomas Jefferson, A Summary View of the Rights of British America
(1774).
Jefferson had also proposed that the motto of the United States should be
“Rebellion against tyrants is obedience to God.”

The Legal System
• Functions of the Law
– Keeping the
Peace/Maintaining
Order/Dispute Resolution
• (e.g. Criminal & Traffic
Laws)
• Police Power
• Prison System
(Deterrence/Reformation)

The Legal System
• Functions of the
Law
– Protecting the Public
Health/Welfare
• (e.g. Anti-
Smoking, Seat
Belts, FDA)

The Legal System
• Functions of the Law
Maintaining Standards of Conduct
Whose standards?
Local/National/International?
Separation of Church & State?

The Legal System
• Functions of the Law
– Facilitating Planning
• (e.g. Contract Law, assigning risks, etc.)

The Legal System
• Functions of the Law
– Promoting Social Justice
• (e.g. Civil Rights Law.)
• Equality?

The Legal System
• Equality?
– “We hold these truths to be self-evident, that all men are created equal
...”
• Do Americans truly believe in equality?
–If so, in what form?

Functions of the Law
• Equality?
• “was there, or will there ever be a nation whose individuals were all equal, in natural and acquired qualities, in virtues, talents, and riches? The answer in all mankind must be the negative.” - John
Adams

The Legal System
• Equality?
• “That they are endowed by their Creator with certain inalienable rights and that among those rights are life, liberty and the pursuit of happiness.”
• Koslowski’s proposition: American’s will tolerate economic inequality as long as they believe that each American has an equal opportunity to become wealthy.

The Legal System
• Equality of Opportunity?
– “Those scenes (devastation after Hurricane
Katrina) confirmed the inescapable conclusion of recent series in The New York Times , The Wall
Street Journal , and the Los Angeles Times : Class, defined by economic and social status and often linked with race, largely determines how one fares in modern America. This nation may be based on egalitarian principles enshrined in the Declaration of Independence, but an individual’s access to educational opportunities, health care, transportation, decent housing, and even disaster relief services depends on income and class .” -
Laura D’Andrea Tyson, Dean of London Business
School, in Ideas Viewpoint: Land of Unequal
Opportunity, Business Week , September 26, 2005, p. 146)

The Legal System
• Functions of the Law
– Protection of Individual Rights &
Freedom
• Bill of Rights.
– http://memory.loc.gov/const/bor
.html
– Protection from what/who?

The Legal System
• Functions of the Law
– Promotion of Economic Prosperity
• (e.g. Adjusting for Market Failures, Anti-Trust, etc.)
– Protection of the Environment
• (e.g. Clean Water Act.)

The Legal System
• Do you see any conflicts between the various functions?
– Keeping the Peace vs. Protection of
Individual Freedom
• (e.g. The Patriot Act, Text: http://www.epic.org/privacy/terrorism/hr3162.html
• 3rd Party Records, Intelligence Searches, “Sneak and Peek”,
“Trap & Trace”
• ACLU Commentary http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12126&c
=207

The Legal System
– Maintaining
Standards of Conduct vs. Protection of
Individual Freedom
• (e.g. Adult entertainment industry, Lottery)
• Look at Lawrence v.
Texas , p.17
– Moral Standards v.
– “Private conduct”
• Look at Strip Club Case, p. 3
– Letter of the law v.
Spirit/Intent of the law

The Legal System
• Protecting the Public Health/Welfare vs.
Promotion of Economic Prosperity
– (e.g. In NC we have had anti-smoking regulations and tobacco subsidies at the same time)

Functions of the Law
• Protecting the Public Health Welfare vs. Protection of Individual Freedom
– Do you believe that you, as an adult should be required to wear a seat belt or a bicycle helmet?

Functions of the Law
Protecting the Public
Health Welfare vs.
Protection of
Individual Freedom
– Do you believe that children should be required to wear a seat belt or a bicycle helmet?

The Legal System
• Promotion of Economic Prosperity vs.
Protection of the Environment
– Is there necessarily a conflict here?

Categories of Law
• Substantive Law - defines rights, privileges & duties
– (e.g freedom of speech, right to vote, qualifications for social security benefits)
• Procedural Law - establishes procedure/rules of enforcement of substantive laws
– (e.g. jurisdiction, trial court procedure, appeals rules, etc.)

Categories of Law
• Procedural Law - jurisdiction ( Yahoo v. La Ligue Contre
Le Racisme et L’Antisemitisme , p.6)
– Issues: Can a foreign nation regulate speech by an
American made within the U.S. that can be accessed by citizens in that foreign nation?Selling Nazi related goods over the internet protected by free speech?
– Basis for Holding: It is preferable to permit nonviolent offense speech than to impose viewpoint-based government regulation upon speech (Do you agree?)
– Declaratory judgement precluding enforcement of French court order
– Note that the 9 th Circuit dismissed this case because it believed the district court had no personal jurisdiction over
La Ligue. However, we have left the district court ruling in the chapter because we believe it still accurately illustrates the conflict between public policy and the enforcement of foreign judgments. For instance, rather than Yahoo! seeking a declaratory judgment, if La Ligue had sued in the U.S. to enforce the French judgment, the district court ruling likely would have been upheld.

Categories of Law
• Civil
– relates to private duties between persons
(including corporations) (Plaintiff v. Defendant)
– remedies: damages, injunction, recission, etc.
• Criminal
– relates to breach of duty to society
– enforcement by prosecution (Prosecutor v.
Defendant)
– punishment v. rehabilitation
• Administrative
– promulgated by government agencies

• Checks and Balances
– Between Federal Government & States
– Between Legislative, Executive, Judicial
Branches
• Constitutional Powers
– e.g. to regulate interstate commerce, foreign trade and Indian affairs, impose taxes, etc.
• Constitutional Limitations
– (e.g. Bill of Rights)

• Constitutions
– U.S. & State
• Treaties
• Statutes (Federal/State)/Ordinances
(Local)
• Administrative Rules/Decisions
• Executive Orders
– w/i authority granted by statute

• Court Decisions- Case/Common Law
– Interpretation
• Plain and Ordinary Meaning (see In re
Blanchflower , p. 15)
• Legislative History
• Purpose
• Public Policy
• In Re Real Networks
– The court is asked to determine if an electronic License Agreement is a
“writing” that satisfies the conditions of the Federal Arbitration Act. The court, looking at the plain meaning of the words, the legislative intent, and public policy required it find the electronic document to satisfy the statute.

Statutory Interpretation
Question #8 on page 27
The court will begin by looking at the plain meaning of the word “common carrier” to see if
AOL clearly falls within its purview. If there is no ambiguity, the inquiry will end at this stage.
However, if the plain (dictionary meaning and common usage) do not conclusively decide the case, the court will look into the legislative history in order to determine the intent of
Congress when it enacted the statute. Because the Communications Act is administered by the
FCC, the court will pay special deference to any interpretation made by that agency in any of the regulations that it has promulgated. Ultimately, the court may turn to public policy for guidance on whether it would be wise to consider AOL or other Internet service providers as common carriers to be regulated by the Communications
Act. In this particular case, the court held that
AOL was not a common carrier and, therefore, could not be found to have violated the
Communications Act. Howard v. America
Online , 208 F.3d 741 (9th Cir. 2000).

• Court Decisions - Case/Common Law
– Findings
– Review
• Constitutional Interpretation
– See Coalition for Economic Equity v. Wilson
» Federal circuit court upheld a CA constitutional provision that prohibited reverse discrimination in public employment, education, or contracting.
Held that the severe limits on affirmative action programs did not violate the U.S.
Constitution.

• Private Law
– e.g. contracts between parties = law unto those parties
• Restatements
– Typically written by legal experts
• International/Foreign Law?
– In some recent decisions (e.g. Lawrence v.
Texas, 539 U.S. 558 (2003), Grutter v. Bollinger,
539 U.S. 306 (2003) & Roper v. Simmons, 538
U.S. 11 (2005)) some justices of the U.S.
Supreme Court have referenced
International/Foreign Law. Should they do so?

Publishing of bills
Notice, Review & Comment Periods for Regulations
No Ex post facto laws - A new statute only applies to actions taken after it becomes effective
Habeas Corpus - A person who is arrested has the right to be told what crimes he or she is accused of, and to request his or her custody be reviewed by judicial authority. Persons unlawfully imprisoned have to be freed.

“To stand by the decisions”
Courts should apply rules developed in prior cases in their own or a superior court, unless they have a compelling reason to do otherwise
As Blackstone wrote in his Commentaries on the Laws of
England , “it is an established rule to abide by former precedents” that the scales of justice be kept steady and not be “liable to waiver with every judge’s opinion.”
Note: Only Majority Decisions create precedents
Chief Purpose: Predictability
Steps
Find earlier case or cases in same jurisdiction with similar facts
Derive rule(s) of law
Apply rule(s) of law

• To Change, Courts may:
– Choose from among various related precedents
– Choose which facts to stress
– Broadly/Narrowly interpret law
– Distinguish the case
– Overrule a case or cases (e.g. Brown v. Board of Education or Lawrence v.
Texas , p. 17)
• Legislature may override by statute

• In cases where there is no binding precedent, known as a case of first impression, the court may refer to positive law (e.g. statutes and constitutions), public policy, and widely held social values in order to craft the best new precedent.
• For example, in a recent case, a girl sued her school for allowing repeated sexual harassment.
– The plaintiff girl’s lawyer talked about sexual harassment precedents.
– The defendant school’s lawyer talked about precedents in which courts decided not to interfere in schools’ decisions.
– The girl won when the U.S. Supreme Court followed her precedent cases.

• Sherbrooke Turf v. Minnesota
Department of Transportation
– The court upholds the constitutionality of a state program that, pursuant to federal regulations, establishes a race-conscious preference program for government contracting.
– Note how the court examines past cases dealing with such race-conscious programs.
The court is following some past decisions and distinguishing others.

•
Question 9. No. Clearly, the federal statute protects whites as well as blacks from racial discrimination in employment. However, an argument that the law prohibits all race-conscious affirmative action plans rests upon a literal reading interpretation of the statute. This strict literal reading of the statute overlooks the fact that Kaiser plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. If the statute is read too strictly, without considering the legislative history of the law and the historical context from which the act arose, it would effectively forbid all race-conscious affirmative action plans and, thereby, bring about an end completely at variance with the purpose of the statute. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and to open employment opportunities to blacks in occupations which were traditionally closed to them. At the same time the plan does not unnecessarily trammel the interests of white employees. Nor does it create an absolute bar to the advancement of white employees. Moreover, it is a temporary measure.
United Steel Workers v. Weber , 443 U.S. 193 (U.S. Sup.Ct. 1979).
•
Question 10. The Court is referring to a manner of statutory interpretation.
Rather than confine itself to the literal meaning of the words (which would make the affirmative action plan illegal), the Court is looking at the purpose, or perhaps the public policy, behind the law. In this way, it ruled that Kaiser could discriminate against whites if it promoted integration of the work force.

Schools of Jurisprudence: Natural law
( Lex Naturalis )
The view that law is essentially a moral instrument that should embody moral principles inherent in nature which are discernable through the use of intelligence.
• Oldest and most enduring school of jurisprudence
• Origins among classical Greek and Roman philosophers (Plato,
Aristotle, Cicero)
• Dominant in Europe’s philosophy in the Middle Ages (St.
Augustine, St. Thomas Aquinas, Summa Theologica )
• Popular in “Age of Enlightenment” (Blackstone, Locke, Hobbes)
• Popular with the vast majority of the “Founding Fathers” of
American Law (e.g. as expressed in the Declaration of
Independence were certain truths were found to be “self-evident”)
• This view provides a rational basis for courts to invalidate the
“positive law” enacted by legislatures.
• It also places a high value on individual rights & freedom and on substantive due process

Schools of Jurisprudence: Natural law
( Lex Naturalis )
The Roman statesman
Cicero stated: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.”

Schools of Jurisprudence: Natural law
( Lex Naturalis )
In the 13th-century, Franciscan nominalists were the first to elaborate legal theories of God-given rights, as individual rights derived from a natural order sustained by God's immutable laws of "right reason".
St. Augustine wrote that an unjust law is a contradiction in terms. For him, human laws cannot be out of harmony with God's higher laws, and rulers who enact unjust laws are wicked and unlawful authorities. In The
City of God , St Augustine explains that a civil authority that has no regard for justice cannot be distinguished from a band of robbers. “ Thus, lex ini usta non est lex “an unjust law is no law at all.”
St. Thomas Aquinas stated that no one should have to obey an unjust
("crooked”) law. To St Aquinas, since God's justice is the basic foundation for the rule-of-law system, a "law" that permits murder or perjury is not really law and people have the moral right to disobey unjust commands. Rulers who enact unjust "law" cease to be authorities in the rightful sense and become tyrants.

Schools of Jurisprudence: Natural law
( Lex Naturalis )
John Locke (1634-1704), whose legal and political ideas provided legal justification to the 1688
"Glorious Revolution" in
Britain, argued that lawmakers put themselves into a "state of war" against the society whenever they endeavor to destroy our Godgiven "natural" rights to life, liberty and property.

Schools of Jurisprudence: Natural law
( Lex Naturalis )
As Baron Montesquieu
(1689-1755) once stated,
“God is related to the universe, as Creator and
Preserver; the laws by which He created all things are those by which He preserves them.”
(Montesquieu, The Spirit of Laws )

Schools of Jurisprudence: Natural law
( Lex Naturalis )
• “Man, considered as a creature, must necessarily be subject to the laws of his Creator,for he is entirely a dependent being.
. . . And consequently, as man depends absolutely upon his
Maker for every thing, it is necessary that he should in all points conform to his Maker’s will. This will of his Maker is called the law of nature . . . . This law of nature, being coeval
[coexistent] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. . . . The doctrines thus delivered we call the revealed or divine law and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature. . . . Upon these two foundations the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, (1723-1780),
Attorney, Jurist, Professor of Common Law at Oxford
University and political philosopher; Author of Commentaries on the Laws of England (1766)

Schools of Jurisprudence: Natural law
( Lex Naturalis )
• As James Wilson, former Supreme Court
Justice and a signer of the Declaration of
Independence and the Constitution stated:
– “That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us … As promulgated by reason and moral sense it has been called natural, as promulgated by the holy scriptures, it has been called revealed law. As addressed to men, it has been denominated the law of nature; as addressed to political societies, it had been denominated the law of nations. But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source; it is the law of God. Human law must rest its authority ultimately upon the authority of that law which is divine. . . Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.”

Historical Jurisprudence
– The view that judges find the law in the history, culture and customs of their people
• e.g. Some assert that the intentions of the framers of the
U.S. Constitution can be discovered through historical research and it is important for judges to ascertain these intentions when adjudicating constitutional questions.
• It’s first explicit expression is attributed to Friedrich Karl von Savigny who wrote that law is "developed first by custom and belief of the people, then by legal science — everywhere, therefore, by internal, silently operating powers, not by the arbitrary will of the legislator."
• Associated with Sir Henry Maine, Sir Edward Coke, Sir
John Selden, and Sir Matthew Hale in England
• Considered a key factor in the development of case method legal instruction at Harvard Law School, which was later carried forward to most other American law schools

Schools of Jurisprudence:
Legal Positivism (Command School)
• Says that the only significant law is the set of rules created by a government.
• Legal positivists essentially regard the law as a product of human will.
• [This view grew in 17th Century England. After the king was executed and
Lord Protector Cromwell minimized the role of Parliament, natural law arguments were unwelcome.]
• Treats the legal and the moral as separate realms.
• The citizen's duty to obey the law is linked with the legitimacy of the source of the command rather than a moral evaluation of the command.
• This view fits well with totalitarian forms of government (e.g. Nazi Germany)
• This view has been championed by John Austin, Christopher Columbus
Langell, Justice Cardozo, Justice Oliver Wendell Holmes, Justice Llewellyn,
Justice Frankfurter, Justice Brennan and Justice Thurgood Marshall.
• As Justice Benjamin Cardozo once wrote, “if there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or moralist.”
• In this same context Justice Oliver Wendell Holmes once defined the law as simply “beliefs that have triumphed” and truth as “the majority vote of that nation that could lick all others.”
• see
Carafano v. Metrosplash.com
, p. 19

Schools of Jurisprudence:
Legal Positivism (Command School)
• According to Legal Positivism:
• (1) There are no objective, God-given standards of law, or if there is, they are irrelevant to the modern legal system.
• (2) The law is the law simply because the highest human authority says it is and is able to back it up by force.
• (3) The law must evolve along with society
• (4) Judges, through their decisions, can and do guide the evolution of the law
• (5) The best way to understand the law is to review judicial decisions (i.e. to follow the case law method).

Schools of Jurisprudence:
Legal Positivism (Command School)
• For examples of Supreme Court decisions that cited “evolving standards”, see Trop v. Dulles , 356 U.S.
86 (1958), Furman v. Georgia , 408 U.S.
238 (1972), Justice Marshall’s dissent in Gregg v. Georgia , 428 U.S. 153
(1976) and Roper v. Simmons , 543 US
551 (2005).

• Says that each case must be viewed in the context of its potential influence on society.
• Looks at law in relation to its social reality and allows for social engineering through law.
• Consequentialist in nature
• A form of judicial activism
• Championed by Dean Roscoe Pound of Harvard Law School
• Related concept: Utilitarianism: Evaluates law according to that which is of greatest benefit to the greatest number (Associated with Bentham
& Mill)

Schools of Jurisprudence:
Sociological Jurisprudence
However, Justice Louis D.
Brandeis (1856-1941) warned:
“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Schools of Jurisprudence:
Legal Realism
• The view that the law is not simply a logical result of the written law, but is influenced by the social, economic, and other views and prejudices of the judges who decide disputes.
• Challenges the traditional view that judges simply identify what the law is by "finding" what has been recognized as the law ( ius dicere : to find law)
• Asserts that judges make new law when they render their opinions (ius facere: to make law)
• A form of judicial activism
• Championed by Justice William O. Douglas

• As Professor Alexander Bickel purports: “ The function of Justices … is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history … in the thought and the vision of the philosophers and poets. The Justices will then be fit to extract “fundamental presuppositions” from their deepest selves, but in fact from the evolving morality of our tradition.” (Bickel, The Least Dangerous
Branch, p.236)

Schools of Jurisprudence:
Legal Realism
• As Professor Thomas Franck characterizes it, law has become a form of “existential relativism” an
“undisguisedly … pragmatic human process. …made by men, and it lays no claim to divine origin or eternal validity. … no judicial decision is ever
“final””. Hence if a decision is later overruled, it does not make it “wrong”, but simply out of step with the times.

This view asserts that people obey the law only out of fear of the punishment that may result if they are caught and held accountable?

Schools of Jurisprudence:
Legal Realism
A noted legal realist, Yale Law Professor
Thurmond Arnold once told a class that judges decide cases solely according to their prejudices. But when a student asked him if he had done the same when he was on the bench Arnold replied “Well, we can sit here in the classroom and dissect the conduct of judges, but when you put on those black robes and you sit on a raised platform, and you are addressed as “Your
Honor”, you have to believe that you are acting according to some objective standard.” (account given by his former student Harold Berman)

Professor Berman asserts that the “sacred” character of law is derived from such things as its:
1) Ritual (as demonstrated in certain procedures an symbols, like the black robes)
2) Tradition (languages and practices past down over time)
3) Authority (reliance on “binding” decisions
4) Universality (connection to certain common legal values mentioned earlier)
This “sacred” character of law is viewed as essential to impress judges, participants in the legal process and society at large with the seriousness and the legitimacy of the legal process.

Do you feel that legal realism’s
“modern” relativistic view makes the law seem somewhat less “sacred” and thus makes the law and legal decisions somehow less worthy of respect?
Could the acceptance of this view be a factor in why the law, lawmakers, lawyers, judges, and legal institutions are held is such low regard today as compared to in the past?

Schools of Jurisprudence:
Legal Realism
• Critical of legal realism,
Chief Justice William
Rehnquist, in an address to Suffolk Law School remarked, "Somewhere
'out there', beyond the walls of the courthouse, run currents, and tides of public opinion which lap at the courtroom door.“

Some Forms of Contemporary
Legal Realism
• Law and Economics
• Feminist
• Critical Race Theory
• Critical Legal Studies

Law & Economics
• Says that legislatures and judges create rules to provide economic incentives for socially beneficial behavior, and disincentives for socially detrimental behavior
– Stresses economic efficiency and wealth over "abstract" individual rights.
– Started in the 1960s
– According to a panel of business law professors at Baltimore in 2000, Legal scholars now are in a “second generation” of Law & Economics. Psychology now has more input.
– People do not always act as rationally as economists have always assumed.

Feminist
Considers existing American law too patriarchal and insists that the female perspective should be considered to a greater extent
• Started in the 1970s.
• e.g. “Battered woman syndrome”
– a wider form of self-defense, [for a woman who kills her male lover without herself being in immediate danger of death from him.]
– For additional information on this see: http://library.lp.findlaw.com/articles/file/00784/00602
0/title/subject/topic/criminal%20law_domestic%20vi olence/filename/criminallaw_1_126 and http://www.divorcenet.com/or/or-art02.html

Feminist
“Reasonable woman standard”: [i.e., a woman perceives risks and benefits of actions differently than a man does; so a work supervisor can be illegally abusive even if a male worker would not have thought so.]

Critical Race Theory
Minority perspective should be considered
• Considers most existing American law as racist
• Recommends integrating particular concerns and views of people of color into the law.
• Started in the 1980s.

Critical Legal Studies
Says that at the end of the day, all
"law is politics” and any one opinion is as true as another. Therefore, any group in power may impose its views on the rest of society

• States that judges have no popular mandate to act as policy makers; rather, judges should defer to the elected branches of the Federal and state governments with respect to policy so long as they stay within the confines of their powers as defined by the U.S. Constitution and state constitutions.
• Judicial restraint is generally popular among conservatives
• Contrast: Judicial Activism (As former Chief
Justice Charles Evans Hughes once said “We are under a Constitution, but the Constitution is what the judges say it is.”

Originalism
• States that the U.S. Constitution means essentially the same thing today as it did when it was drafted and its meaning can only be altered by amending the
Constitution itself. (Justice Antonin
Scalia considers himself to be an
Originalist)

Textualism
• States that the words in used in the
Constitution should be taken and interpreted at face value without attempting to discern the drafter’s intent.

– This view emphasizes the influence of scholars who
• analyze the laws of various states; AND
• compare the components of those laws, and their results; AND
• Draft model laws combining the best features of various state laws on the subject, AND
• Persuade state legislatures to enact those model laws in their states.
• E.g., the Uniform Commercial Code

• Deductive Reasoning
– Makes use of syllogism, a type of logical relationship involving a major premise and a minor premise. [Useful when a general rule
(major premise) is widely accepted in society]
• Linear Reasoning
– Proceeds from point to point, with the final point being the conclusion. [This ensures that facts sufficiently match the elements of the rule.]
• Reasoning by Analogy
– Analysis that compares the facts of the case under consideration with the facts of similar cases that have been decided earlier

• the judiciary as a source of law, and
• the adversary system for settling disputes
• The adversary system is based on the belief that the truth is most likely to emerge when the opposing sides conduct their own investigations and formulate and zealously present their own arguments, because they are each highly motivated to find ALL the facts that support their case. A neutral judge and jury can then choose to ignore facts which they feel are not relevant and reach a fair and impartial verdict and judgment.
• There are ethical limits on the “zealous representation” (see
Rico v. Mitsubshi Motors , p. 22)

In Civil Law Systems

Common Law Systems
The United States (excluding
Louisiana)
England
Canada (except Quebec)
Australia
New Zealand
Hong Kong
Singapore

Civil Law Systems
Continental Europe
Scotland
Louisiana (something of a hybrid)
Quebec
Mexico and Latin America
Parts of Africa and Asia

Attorney-Client Privilege
• What is the attorney-client privilege?
– Client has the privilege not to testify, to prevent their attorney from testifying, to prevent the attorney’s staff from testifying, as to confidential communications made by the client to the attorney when seeking legal advice.
This privilege covers initial consultations, even if the attorney ends up not representing the client
.

Attorney-Client Privilege
• What are the possible consequences to an attorney who violates the privilege?
– If break privilege without legitimate excuse may = malpractice or be a cause for a disciplinary action by the state bar.

Attorney-Client Privilege
• How long does this privilege last?
– This is an indefinite privilege, even after the death of the client (though it has often been challenged when a client dies, including a very controversial case in NC recently, involving one of NC’s best criminal defense attorneys, Rick
Gammon, see:
– http://www.aoc.state.nc.us/www/public/s c/opinions/2003/303-02-1.htm
)

Attorney-Client Privilege
• Two points from the Gammon case:
– The U.S. Supreme Court has recognized a testamentary exception and has assumed that, based upon this exception, the attorney-client privilege continues after a client's death. The rationale for permitting disclosure under these circumstances is that it furthers the client's intent.
– Many jurisdictions have enacted provisions empowering a personal representative to claim and exercise (and by necessary inference also waive) the decedent's attorney-client privilege

Attorney-Client Privilege
• What are some common exception scenarios to this privilege?
– Malpractice suit or Disciplinary Action
Brought v. the attorney
– The client may waive this privilege.
– Joint representation that later divides.
– Knowledge of future crime or fraud
– Court Order. May be after in camera session (i.e. typically in the judge’s chambers)

Attorney-Client Privilege
• Any other limitations on the privilege?
– This privilege applies to legal advice, but not other advice, such as personal or business advice.
– This privilege only applies to communications made in a
“confidential setting”.
– This privilege generally does not apply to the identity of the client.
– This privilege generally does not apply to the whereabouts of the client. (So, in all those cases where Perry Mason had clients hidden away in motels out of town, he would have been required to disclose their location if the court inquired!)
– This privilege generally does not apply to physical evidence.
(So when Lt. Tragg asks Perry Mason if he has the suspect’s gun, and he indeed does have it in his drawer, he has to pull it out and turn it over.)

Attorney-Client Privilege
• In Brett v. Berkowitz , 706 A.2d 509 (Sup.Ct.
Del. 1998), a former client sued her attorney for sexual harassment. During discovery she sought the names of other clients with whom the lawyer may have had sexual contact. The
Delaware Supreme Court denied her request, claiming that revelation of their names would violate the attorney/client privilege by disclosing the fact that they had consulted a lawyer on domestic relations matters.

Attorney-Client Privilege
• In Kobluk v. University of Minnesota , 574 N.W.2d 436 (Sup.Ct. Minn.
1998), a professor was challenging his denial of tenure. As a part of discovery, he sought copies of two preliminary drafts of the letter he received notifying him of university’s decision to deny him tenure. The original copy was written by the university provost, who then sent it to the university counsel for revision. The second copy was written by the counsel after a discussion with the provost. The provost then drafted a final letter which was sent to the professor. The court was forced to decide if the drafts constituted communications relating to the purpose of seeking or rendering legal assistance and if they were made in confidence. The court viewed the drafts as a request for, and the offering of, legal advice. Further, it noted that the drafts were marked,
“CONFIDENTIAL DRAFT.” Accordingly, the court upheld the confidentiality of the drafts and denied the professor’s discovery request. It stated that the test of confidentiality was “whether the client intended to keep the specific draft confidential and whether the client and the attorney took all steps reasonably necessary to prevent disclosure.”

Attorney-Client Privilege
• United States v. Stewart
– Martha Stewart, under indictment for securities law violations, sent an e-mail to her attorney explaining her actions. She also forwarded a copy of the e-mail to her daughter. The U.S. attorney prosecuting her case sought access to the e-mail.
The court concluded that Stewart waived the attorney-client privilege by sharing the e-mail with her daughter. However, it refused to compel disclosure of the email’s contents because it was protected by the work product privilege.

Work Product Doctrine
• What is the work product doctrine?
– Work done by the attorney in anticipation of trial is protected from discovery.
– It also requires that firms exercise reasonable care to prevent disclosures by staff.
– (Opposing counsel will sometimes seek to garner such information from staff with seemingly innocent inquires).
– Based on Hickman v. Taylor (1947)
– Incorporated into the Federal Rules of Civil Procedure and most State Rules.
– Reason for: So that attorneys can prepare their cases fully and confidentially.
– ABA Model Code goes beyond this to all “confidences and secrets”.
– ABA Model Rules covers all “information relating to representation.”

Work Product Doctrine
• What are the two kinds of trial preparation materials covered under the work product doctrine and how do they differ?
– Includes mental impressions (unqualified protection)
– or informational material (qualified protection).

• Objectives
– Arrange business plans and methods to maximize profits through:
• Avoiding losses through fines and damages
• Reaching business goals through enforceable contracts while avoiding government prohibitions
• Roles
– Lawyer Consulting
– Client Communication