Intro To Law

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Part
Introduction to
the Law
1.
2.
3.
4.
5.
6.
7.
8.
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Law, Legal Reasoning, and the Legal Profession

Dispute Settlement
Business Ethics and Corporate Social Responsibility
Business and the Constitution
Crimes
Intentional Torts
Negligence and Strict Liability
Licensing and Intellectual Property
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Chapter
Law, Legal Reasoning,

and the Legal Profession
LO
Learning Objectives
After you have studied this chapter, you should be able to:
1.
Identify the basic functions of law.
2.
List the various sources of law.
3.
Analyze a case using the four steps in the process of legal interpretation.
4.
Make a legal decision by applying the three-step, stare decisis process.
5.
Explain how law is able to change despite of stare decisis.
6.
Read a judicial decision and identify which school of legal jurisprudence the judge has
followed.
7.
Explain when the attorneyclient privilege and work product privilege arise and when
they are lost.
Jennifer regularly smoked marijuana and crack cocaine throughout the duration
of her pregnancy. While she was in labor, she used rock cocaine. After the child
was born with an addiction to cocaine, Jennifer was charged with violating a state
law that provided: It is unlawful ... to deliver any controlled substance to a person
under the age of 18 years. The state asserted that Jennifer delivered cocaine to
her child via blood flowing through the childs umbilical cord in the 60- to 90-second
period after the baby was expelled from her birth canal but before the cord was
severed (Johnson v. Florida, 602 So.2d 1288 (Sup.Ct. Fla. 1992)).
Which of the basic functions of law are implicated by this state law?
What kind of law is thiscivil or criminal?
How will a court determine whether Jennifer has violated this law?
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4 Part One Introduction to the Law
Introduction
What is law? What roles does it play in our lives? These are important questions to
consider as you read this first chapter. People view law in many different ways. Some
think of the police, while others think of any rules governing day-to-day behavior.
Each perception is partially correct. To truly comprehend law and a legal system, one
must understand the nature of the underlying society. Law is a reflection of the people, organizations, and values it simultaneously serves and controls. Never lose sight
of the dynamic nature of any legal system. To survive and effectively guide, it must
draw from the past, reflect the present, and pave the way for the future.
Law in Business
Effective managers and employees must develop knowledge of both law and business
because people involved in business also are involved in, and greatly affected by, the
law concerning business. With each passing day, this link between law and business
grows even stronger.
Chapter Overview
This introductory chapter begins by investigating the essential features of law and
the U.S. legal system. Then, after consideration of several fundamental classifications
of law, attention turns to the constitutional underpinnings of the legal system. This
discussion is followed by an introduction to the primary sources of law and legal reasoning (how courts decide cases). Next, there is a discussion of the important concept
called stare decisis, which promotes orderly change within the legal system. The chapter then provides a brief look at the predominant schools of legal philosophy (legal
jurisprudence) that provide a context for legal decision making. Then, after looking
at the role of the legal profession, the chapter closes by introducing students to the
importance of practicing preventive law.
The Nature of Law

Law is much more than a set of rules. Our legal system involves processes for social
control. It consists of institutions such as legislatures and government agencies for the
creation of rules of behavior. It also includes police forces and courts to enforce the
rules and resolve disputes. In short, the U.S. legal system encompasses a process and
structure for creating, enforcing, and interpreting those rules. This section looks at the
idea of rules, the reasons for having rules, and the structure that manages them.
Legal Rules
At its most basic level, law can be seen as rules that limit peoples freedom of action.
These rules may be called laws, statutes, or ordinances. The label doesnt really
matter. The important thing they have in common is that they require people to conform their behavior to some particular standard. This concept of law may be viewed
as a set of principles that
1. Have general application to society.
2. Were developed by a legitimate authority within society.
3. May threaten sanctions against those who fail to comply with the principles.
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Chapter 1 Law, Legal Reasoning, and the Legal Profession 5
Functions of Law
The basic functions of law are:
LO1
1.
2.
3.
4.
Keeping the peace.

Enforcing standards of conduct and maintaining order.
Facilitating planning.
Promoting social justice.
In the chapter opener, the law against delivering a controlled substance to a minor
established certain standards of conduct in an attempt to maintain order and, perhaps, keep the peace. Those two functionskeeping the peace and enforcing standards
of conduct and maintaining orderhelp further another function of law that is especially important: facilitating planning. Contract law is an example of this function. In
making the courts available to enforce contracts, the legal system ensures that parties
to contracts either carry out their promises or pay for the damages they cause. For
example, through contracts, a manufacturing company can count on either receiving
the raw materials and machinery it has ordered or else getting money from the contracting supplier to cover the extra expense of buying substitutes.
While all societies use law to keep peace and maintain order, societies such as ours
also use the law to achieve additional goals. The tax laws, for example, seek not only
to raise revenue for government expenditure but also to redistribute wealth by imposing higher inheritance and income taxes on wealthy people. The antitrust laws seek
to prevent certain practices that might reduce competition and thus increase prices.
Consumer laws have a wide range of purposes, from prohibiting the sale of unsafe
products to providing more information to shoppers.
Concept
Summary:
The Nature
of Law
Definition
Functions of Law
A set of principles, rules, and standards of conduct that
Keeping the peace
1. Have general application in the society
Enforcing standards of
conduct and maintaining
order
2. Have been developed by an authority for that society
Facilitating planning
3. Have an associated penalty imposed upon violations
Promoting social justice
The function of these statutes is to promote social justice by protecting the disadvantaged. Courts, in applying the law, also seem to be seeking to balance the scales
to benefit the little guy in dealing with big business, big labor, and big government.
Helping the ordinary citizen to deal with a very complex and quite impersonal economy also is the objective of federal legislation establishing social security, welfare,
housing, and medical programs.
Classifications of Law
There are many ways to subdivide the law. One is to distinguish between substantive
law and procedural law. Another important distinction is between criminal and civil
law. This section examines these legal classifications.
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Substantive versus Procedural Law

Substantive law sets out the rights and duties governing people as they act in society.
Duties tend to take the form of a command: Do this! or Dont do that! An example is the Civil Rights Act of 1964. It tells employers that they must not discriminate
among people in hiring and employment on the basis of race, color, religion, sex, or
national origin.
Substantive law also establishes rights and privileges. An example is the freedom of
speech granted by the U.S. Constitution. Another is the right you have to defend yourself
if physically attackedthe so-called right of self-defense. A slightly different example is
the privilege of receiving food stamps if you meet the qualifications set up by Congress.
Procedural law establishes the rules under which the substantive rules of law are
enforced. Rules as to what cases a court can decide, how a trial is conducted, and how
a judgment by a court is to be enforced are all part of procedural law. Consider the
following case, which illustrates the overlap between substantive and procedural law.
Be certain to identify when the court is dealing with substantive law and when it is
examining procedural law. Simultaneously, consider how the growth of the Internet
has brought about clashes between the rules of differing nations.
Ethics in
Action
Can you think of an example of a duty imposed by substantive law that might violate
some moral or ethical belief of an individual? How should such conflicts be resolved?
Consider the following case: Two clinics operated in Fargo, North Dakota. One performed abortions while the other provided only pregnancy tests and antiabortion
counseling services. However, the antiabortion clinic used a name similar to that of
the abortion clinic in order to confuse the public into mistakenly contacting the wrong
clinic. Further, it misled the public into believing that it performed abortions, and then,
when women seeking abortions arrived, they were given antiabortion materials. After
the antiabortion clinic started these tactics, there was a considerable decline in the abortion clinics business. The jury found that the antiabortion clinic violated the states false
advertising statute.1
Criminal versus Civil Law

Criminal law defines breaches of duty to society at large. It is society, through government employees called prosecutors (such as district attorneys), that brings court action
against violators. If you are found guilty of a crime such as theft, you will be punished
by imprisonment or a fine. When a fine is paid, the money generally goes to the state,
not to the victim of the crime. In the chapter opener for example, Jennifer was charged
with violation of a criminal statute.
Private duties owed by one person (including corporations) to another are established by civil law. For example, we have a duty to carry out our contractual promises.
Tort law defines a host of duties people owe to each other. One of the most common
is a duty to exercise reasonable care with regard to others. Failure to do so is the tort
of negligence.
Suit for the breach of a civil duty must be brought by the person wronged. Generally, the court does not seek to punish the wrongdoer but rather to make the wronged
1
Fargo Womens Health Organization v. FM Womens Help and Caring Connection, 444 N.W.2d 683
(N.D. Sup. Ct. 1989).
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Yahoo! v. La Ligue Contre le Racisme et LAntisemitisme

169 F.Supp.2d 1181 (N.D. Cal. 2001)
FACTS
DECISION
Yahoo! subsidiary corporations operate regional Yahoo! sites

and services throughout the world, including France. La Ligue
Contre le Racisme et lAntisemitisme (LICRA), a French nonprofit organization dedicated to eliminating anti-Semitism,
asked a French court to issue a cease and desist order against
Yahoo! because it discovered the sale of Nazi and Third
Reichrelated goods through Yahoo!s auction sites, in violation of French law. The French court ordered Yahoo! to render
impossible any access via Yahoo.com to Nazi auction services
or any site or service that may be construed as an apology
for Nazism or a contesting of Nazi crimes to French citizens.
The order subjected the company to a penalty of 100,000
euros for each day that it failed to comply. Yahoo! claims that
because it lacks the technology to block French citizens from
accessing its auction site to view materials that violate the
French order, it cannot comply with the French order without
banning Nazi-related material from Yahoo.com altogether. It
contends that, because such a ban would infringe impermissibly upon its First Amendment right to speak under the U.S.
Constitution, the U.S. district court should issue a declaratory judgment holding that the French courts order is not
enforceable under the laws of the United States.
Yes. This court must and will decide this case in accordance with the Constitution and laws of the United
States. It recognizes that in so doing, it necessarily adopts
certain value judgments embedded in those enactments,
including the fundamental judgment expressed in the
First Amendment that it is preferable to permit the nonviolent expression of offensive viewpoints rather than to
impose viewpoint-based governmental regulation upon
speech. The government and people of France have
made a different judgment based upon their own experience. In undertaking its inquiry as to the proper application of the laws of the United States, the court intends
no disrespect for that judgment or for the experience
that has informed it. The French order is valid under the
laws of France, it may be enforced with retroactive penalties, and the ongoing possibility of its enforcement in
the United States chills Yahoo!s First Amendment rights.
Thus, Yahoo! has shown that an actual controversy exists
and that the threat to its constitutional rights is real and
immediate. Accordingly, a declaratory judgment precluding enforcement of the French order in this country is
warranted.
ISSUE
Note: Ultimately, the Court of Appeals reversed this case, holding

that the court did not have jurisdiction. See 379 F.3d 1120 (9th
Cir. 2004). (Jurisdiction is discussed in Chapter 2.) However, the
district courts decision still is instructive.
Will the U.S. court issue a declaratory judgment holding the

French order unenforceable in the United States?
party whole through a money award called damages. For example, if someone carelessly runs a car into yours, that person has committed the civil wrong (tort) of negligence. If you have suffered a broken leg, you will be able to recover damages from the
driver (or his or her insurance company). The damages will be an amount of money
sufficient to repair your auto, to pay your medical bills, to pay for wages you have lost,
and to give you something for any permanent disability such as a limp. Damages for
pain and suffering also may be awarded.
Although the civil law generally does not aim to punish, there is an exception. If
the behavior of someone who commits a tort is outrageous, that person can be made
to pay punitive damages (also called exemplary damages). Unlike a fine paid in a criminal case, punitive damages go to the injured party.
Sometimes, the same behavior can violate both the civil law and the criminal law.
For instance, a person whose drunken driving causes the death of another may face
both a criminal prosecution by the state and a civil suit for damages by the survivors
of the victim. If both suits are successful, the driver would pay back society for the
harm done with a criminal fine and/or prison sentence and compensate the survivors
with the payment of money damages.
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Concept
Summary:
Criminal
versus Civil
Law
Criminal Case
Civil Case
Elements
Intentional violation of a
statute
Harm to another person or property

(tort) or breach of a contract
Actors
Prosecutor v.
(government)
Plaintiff
v.
Defendant
(wronged party) (party causing harm)
Defendant
(accused)
Punishment Fines, imprisonment,

execution
Defendant may have to pay the

plaintiff compensatory and punitive
damages
Constitutional Foundations
Although law is made and enforced by the government, it also defines and organizes
the government. To understand the American legal system, you need to be familiar
with the constitutional foundation of American government. A very brief review is
presented here.
Checks and Balances

The original 13 colonies became sovereign (independent) nations after they won independence from England. Although people in each state were fearful their state might
be dominated by other states with different interests, they came to realize the federal
government needed more power than had been given to the Continental Congress. So,
the founders set up a system of checks and balances between the powers of the states
and those of the federal government. However, they also wrote the supremacy clause
into the Constitution. It declares that where state laws conflict with legitimate federal
laws, federal law shall prevail.
The founders also devised a system of checks and balances within the federal government. They established three equal branches of governmentthe legislative, executive, and judicial brancheswhich have different but complementary functions. As a
check on the passage of statutes that might be ill advised, proposals will not become law
unless the president and both houses of Congress approve them. A two-thirds majority is
required in each house to override a veto by the president. Furthermore, Congress itself
cannot enforce a statute; that is left to the executive and judicial branches. The initiative
for enforcement must be taken by the executive branchoriginally the attorney general.
Today, regulatory agencies take the lead in enforcing certain statutes. However, the
executive must go to the judicial branch to punish violations of a statute. Also, it is
this branchthe judicialthat interprets statutes and other sources of law.
Constitutional Powers
Under the Constitution, laws enacted by Congress are invalid if the Constitution does
not give Congress the power to pass that kind of legislation or if the Constitution prohibits such a law. These restraints are also a part of the system of checks and balances.
Most federal regulations are based on power given to Congress under the Constitutions Commerce Clause, which permits Congress to regulate interstate and foreign
commerce. Supreme Court decisions since the 1930s generally have interpreted that
power very broadly. For example, the Civil Rights Acts were passed under the Commerce Clause power; so was the Clean Air Act.
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The federal taxing power has been used to regulate business activities. For example,
high import duties can be used to shut off the importation of certain foreign goods.
In addition, the income tax laws (the Internal Revenue Code) are used to regulate
behavior. When the government wishes to encourage certain kinds of investments, it
offers tax credits.
Constitutional Limitations
Many prohibitions against government regulation are contained in the Bill of Rights
(the first 10 amendments to the Constitution). These amendments guarantee certain
rights to the people, including the familiar rights of free speech, freedom of religion,
and the privilege against unreasonable search and seizure.
Judicial interpretations of the protections offered by the Constitution have varied
throughout history. At one time the Due Process Clause of the Fourteenth Amendment was construed to prohibit many types of business regulation by state governments. Its statement that a persons liberty shall not be taken without due process
was interpreted to be a guaranty of almost total freedom of contract. Under this
approach, judges regularly held state and federal regulations unconstitutional. Interpretations of the law change over time, however, and today few statutes regulating
business activity are found to violate the Due Process Clause.
Federalism
Under the notion of federalism, the United States is composed of 51 different legal
systems. The Constitution established a federal government with limited powers rather
than a national government. This variety of legal systems is part of the concept of
checks and balances. There is a federal legal system, and each state has its own system.
However, as noted earlier, when there is conflict between the two systems, the federal
rules prevail. This, of course, assumes the federal government is acting under one of
the powers granted to it by the Constitution.
Sources of Law
There are numerous sources of law within each of the 51 systems. The primary
sources are:
LO2
1.
2.
3.
4.
5.
6.
7.
Constitutions
Treaties
Statutes
Administrative rules and decisions
Executive orders
Judicial decisions
Private law
Constitutions
The U.S. Constitution is the highest source of law in the United States. Every other
form of law must be consistent with the Constitution or it will be struck down by the
courts. Each state also has a constitution that is similar to the U.S. Constitution in the
design of the government it provides. However, many of them are much more specific
and detailed. As a result, they are not as adaptable to changing conditions as the U.S.
Constitution, and many have been completely rewritten one or more times. The U.S.
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Constitution, on the other hand, has had only 17 additional amendments in the more
than 200 years since the adoption of the Bill of Rights.
Although state constitutions are subordinate to the U.S. Constitution, they are
superior to law derived from other sources within the state. The importance of this
will become clearer when the power of judicial review is discussed later in this chapter.
Treaties
The Constitution declares that treaties made by the president with foreign governments, and ratified by at least two-thirds of the Senate, are the supreme law of the
land. They therefore may override acts of Congress or state legislatures and other
laws that are inconsistent. However, conflicts of this sort seldom arise since the states
may not make treaties with foreign countries.
Statutes
Within each legal system, federal or state, statutes stand next in the hierarchy. A statute is the product of the lawmaking of a legislature. Statutes may add details to the
government framework by establishing a regulatory agency or an agency to provide a
public service. Or statutes may establish rules that govern certain kinds of activities,
such as the use of automobiles on highways. The entire criminal law, the law applicable to sales of goods, and almost all law limiting or regulating business activities
make up statutory law.
Both Congress and the state legislatures enact a large number of statutes at every
session. People tend to turn to Congress and/or the state legislatures to urge the passage of a law (statute) whenever they recognize a problem. This seems to be true
whether it is primarily an economic problem (such as the dwindling availability of
petroleum), a moral problem (such as sexual practices), or a health problem (such as
misuse of drugs). Because there are 50 state legislatures, statutory law varies from state
to state. There is a trend, however, to pass uniform laws in areas such as business where
uniformity is seen as particularly important. The Uniform Commercial Code (UCC),
which regulates a wide variety of commercial transactions, is the most widely adopted
uniform law. The legislatures of all 50 states have enacted the Code in some form.
Governmental units within the states, such as cities and counties, also have the
power to legislate. Their enactments are called ordinances. Local legislation regulating
zoning and noise levels are examples of ordinances.
Administrative Rules and Decisions

Congress and the state legislatures can delegate some of their lawmaking power to
a government agency. During the 20th century many administrative agencies were
established to regulate particular areas of activity. Businesses are heavily regulated in
this manner. While states also establish agencies, our discussion focuses on the federal
regulatory agencies.
Independent Agencies
The first federal regulatory agency was the Interstate Commerce Commission (ICC),
which was organized by a statute passed in 1887. Congress has followed this model
often in establishing other agencies. These are called independent agencies because they
are not really part of the executive branch of the government under the control of the
president. Rather, they are headed by a board or commission. Although the members
are nominated by the president, approximately half of them must be from each major
political party, and their appointment is confirmed by the Senate for fixed terms.
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This type of regulatory agency is given authority by Congress both to make rules
and to enforce them. Congress grants rule-making power to the agency instead of
establishing detailed rules in statutes. It was believed that the agency members and
staff would have greater expertise than Congress and would develop it further through
regulatory experience. In addition, it was hoped that continuous regulatory supervision by the agency would be more adaptive to specific needs than reliance on legislation. An example of an agency that relies primarily on rule-making is the Securities
and Exchange Commission, which issues rules and may go to the federal courts to
enforce them.
Concept
Summary:
Independent
Agencies
Creation
Congress passes enabling legislation specifying the powers of the agency
Features
Headed by a board or commission

Members nominated by president
Appointments confirmed by Senate
Appointees drawn from the two major political parties
Powers
Investigative
Rule-making
Adjudicatory
Constitutionality of Agency Rules

To make its delegation of power constitutional, Congress must provide adequate standards or guidelines in the statute creating the agency. However, the Supreme Court
has upheld some very broad delegations of rule-making power that contain extremely
vague guidelines. If adequate guidelines are provided, rules issued by an agency have
the same force as statutes passed by Congress.
Judicial Functions
A number of agencies also make law by deciding cases. Some of them regulate primarily on a case-by-case basis through their decisions. Here, the agency performs a quasijudicial function. It is also, in effect, the prosecutor, since the agency staff decides
whether or not to begin an enforcement action. If the agency enforces one of its own
rules, it also is performing an executive function. This concentration of functions in a
single agency was much criticized until passage of the Administrative Procedure Act
of 1946, which requires a separation of the functions within the agency. Now, independent administrative law judges (ALJs) hear the evidence and make preliminary
decisions. The agency board or commission then issues a final order. Such orders are
appealable to, and enforced by, the federal courts.
Executive Orders
Congress or a state legislature also may delegate rule-making power to the president
or a governor. Again, guidelines must be furnished. An example of an important
executive order was President Franklin D. Roosevelts 1943 order requiring all contracts for war supplies to include a clause prohibiting race discrimination. Like agency
rules, executive orders have the force of law if they are within the authority granted
by statute.
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Judicial Decisions
Most people do not realize that courts also make law. They do so in three ways:
(1) through interpretation they give meaning and effect to the other sources of law,
(2) through the common law they find law when no other source offers a solution to
a legal dispute, and (3) through judicial review they determine the legitimacy of the
actions of other branches of government.
We now look at the common law and then at the process of judicial review. The
notion of judicial lawmaking through statutory interpretation is examined in a following section as part of a more comprehensive discussion of legal reasoning.
Common Law
Court-created law is called common law. It arises when courts are called upon to
resolve disputes for which there is no statute or other source of law establishing a rule.
The idea of a common law (or decisional law) springs from early English history. After
the Normans conquered England in 1066, William the Conqueror and his successors
attempted to unite the country by dispatching royal judges to hold court in each of the
cities. This practice served to replace the varying customs and rules of each locality
with a uniform (or common) system of laws.
The law evolved as more and more disputes were heard by the judges. Uniformity
was furthered by the practice of following precedents. This meant that whenever the
facts of a dispute were similar to those of an earlier case, the judge generally would
follow the earlier decision. (This doctrine, known as stare decisis, is discussed later
in the chapter.) When the American colonies won their freedom from England, they
adopted the large body of English common law.
The notion of equity is another source of common law. The early English legal system provided a court of chancery, which provided equitable remedies not available to
the common law courts. Equity was more flexible than early common law. Rather than
adhering blindly to past precedents, the court of chancery sought fundamental fairness. While most states have dispensed with a separate court of chancery, their courts
are free to seek equitable solutions when strict adherence to established law would
bring about a grave injustice.
Judicial Review
Courts also make law through their authority to interpret the meaning of the other
sources of law (constitutions, statutes, etc.). Under the power of judicial review, a judge
may render a legal rule unenforceable by declaring it in conflict with a constitution.
Similarly, higher courts may decide that lower court decisions are invalid. Most of the
decisions presented in this text are examples of courts engaging in judicial review.
Private Law
Private persons also may create legally binding obligations on one another through their
power to contract. When people enter into contractual agreements, the courts generally
enforce their terms. But private law is subordinate to the other sources of law. As such, contracts are unenforceable when they conflict with the other sources of law or public policy.
Legal Reasoning
Much of law school is spent learning how to think like a lawyer. Many nonlawyers
view this thought process with suspicion as if it were somehow a distortion of reality.
However, that is far from the truth. Legal reasoning is a useful tool for understanding
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and persuading. It combines basic analytical thinking with recognition of the special
features of the underlying legal system. Legal reasoning is a type of critical thinking
that proves useful in both legal and nonlegal situations.
The next three sections introduce three components of legal reasoning. It begins
with a look at how judges and lawyers interpret the words in statutes and other legal
rules. This is followed by an examination of the doctrine of stare decisis that underlies
our common law system. The section closes with a brief exploration of how our legal
philosophy affects the form and content of our decisions.
Legal Interpretation
LO3
Courts determine law through a process of legal interpretation. Many words are
ambiguous by nature. Further, most statutes are written in very broad and general
language. Thus, the courts power to interpret is an important one. It is especially
important when a case involves a situation the legislature did not foresee when it
passed the law. Through such interpretation judges can broaden or narrow the reach
of a law. In interpreting legal rules, courts generally:
1. Look to the plain meaning of the language.
2. Examine the legislative history of the rule.
3. Consider the purpose to be achieved by the rule.
4. Try to accommodate public policy.
Where a statute has been interpreted by a government agency, the courts traditionally
defer to that interpretation if it seems reasonable.
Plain Meaning
Generally, the first step in interpreting a statute or other source of law is to look at
the plain meaning of the words. A judge would not say the legislature meant to establish a 65-mile-per-hour speed limit when the statute says 55. Some courts refuse to go
beyond this step. They claim that they should apply a rule according to its literal language and not concern themselves with anything else. To do otherwise, in their minds,
would result in their imposing their will on the legislature.
Remember in the chapter opener, Jennifer was accused of delivering a controlled substance to a minor. The state was able to avoid a debate over the word
minor by claiming the child received cocaine through the umbilical cord after
she was expelled from the birth canal but before the cord was severed. However,
the court still needed to interpret the word delivery. If the plain meaning of the
word delivery did not encompass this situation, Jennifer should be found not
guilty.
In a rather curious case (In re Blanchflower, 824 A.2d 1010 (N.H. Sup.Ct. 2003)),
a man sought a divorce from his wife after he discovered that she was carrying on a
homosexual relationship with another woman. Under that states divorce laws, the
wife would receive less in the final property settlement if she committed adultery. The
court, after checking the dictionary, stated that adultery requires voluntary sexual
intercourse between a married man and someone other than his wife or between a
married woman and someone other than her husband. While the term someone
might be ambiguous, the court explained that the dictionary made clear that the
meaning of sexual intercourse requires insertion of the penis in the vagina. Thus,
basing its decision on the plain meaning of words, the court ruled that a homosexual
relationship between two women cannot constitute adultery.
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United States v. Ressam

553 U.S. 272 (U.S. Sup. Ct. 2008)
FACTS
Ahmed Ressam attempted to enter the United States
by car ferry at Port Angeles, Washington. Hidden in the
trunk of his rental car were explosives that he intended to
detonate at the Los Angeles International Airport. Ressam
falsely identified himself on his customs declaration form.
After a search of his car uncovered the explosives, he was
convicted of the felony of making a false statement to a
United States customs official and carrying an explosive
during the commission of that felony. Ressam contends
that the court should set aside his conviction for carrying
an explosive during the commission of a felony. He argues
that the court should read the word during to include a
requirement that the explosive be carried in relation to
the underlying felony.
ISSUE
Should the word during be interpreted as requiring that
the explosive be carried in relation to the underlying felony?
DECISION
No. There is no need to consult dictionary definitions of
the word during in order to arrive at the conclusion that
Ressam engaged in the precise conduct proscribed by the
statute. The term during denotes a temporal link. That
is surely the most natural reading of the word as used in

the statute. Because Ahmeds carrying of the explosives
was contemporaneous with his violation of the statute
prohibiting making false statements to customs officials,
he carried them during that violation. The history of
the statute we construe today further supports our conclusion that Congress did not intend to require the government to establish a relationship between the explosive
carried and the underlying felony. When this statute was
originally enacted, it mandated imprisonment for any
person who carried an explosive unlawfully during the
commission of any felony. In 1984, when the statute was
redrafted to increase the criminal penalties, it deleted the
word unlawfully and inserted the words in relation to
immediately after the word during. Then, four years
later, the statutory penalties were increased again. This
time, Congress did not insert the words in relation to
after the word during. It is possible that this omission
was inadvertent. However, that possibility seems remote
given the stark difference that was thereby introduced
into the otherwise similar texts. Since Ressam was carrying explosives when he made the false statements to the
customs official, he was carrying them during the commission of that felony.
Legislative History
Most courts refer to a statutes legislative history when the language is unclear. This
involves an examination of investigative committee reports, legislative hearings, and
press announcements. They also may look at discrepancies between how a bill was
first introduced and how it finally was enacted for guidance on how to interpret its
meaning.
Refer again to the chapter opener. In deciding if Jennifer violated the delivery
statute when she ingested crack cocaine while pregnant, the court reviewed the statutes legislative history. It discovered that the legislature considered and rejected a specific statutory provision authorizing criminal penalties against mothers for delivering
drug-infected children. Thus, it concluded that the legislature did not intend for the
statute to authorize prosecutions of pregnant drug users. In the next case summary,
notice how the U.S. Supreme Court bases its decision on the legislative history of the
applicable law.
Purpose
Part of the courts investigation into a laws legislative history is to determine the purpose of the rule. This is because judges generally do not wish to interpret a law in a
manner that conflicts with the objectives of the original lawmakers.
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Twisdale v. Snow
325 F.3d 950 (7th Cir. 2003)
FACTS
James Twisdale supervised a black woman, Barry Madison,
at an IRS regional office. After Madison filed charges of
racial and sexual discrimination, Twisdale, who was skeptical of Madisons claim, participated in the investigation
by giving information to the government investigator.
After Madisons complaint was resolved in her favor, Twisdale claims he was subjected to various humiliations by
his supervisors. Twisdale sued the IRS under Title VII of
the Civil Rights Act of 1964, charging that his supervisors
retaliated against him for opposing Madisons discrimination claims.
ISSUE
Does Title VII protect employees who participate in discrimination investigations on the side of the employer
from retaliation?
DECISION
No. In part, Title VII forbids an employer to discriminate against any of his employees . . . because he has
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under the statute. Read literally, the provision protects
even an employee who like Twisdale participates in an
investigation on the side of the employer rather than
on the side of the employee who made the charge of
discrimination. However, suppose that Twisdale had

opposed Barry Madisons charge of race and sex discrimination because he is a racist and a sexist and that
he had been fired for having opposed her charge. On his
view of the scope of the retaliation provision, he would
be entitled to reinstatement. How such an interpretation could promote the policy of Title VII is beyond us.
The statute has the limited purpose of preventing certain forms of discrimination. The retaliation prohibition
backs up this central thrust by protecting employees
who invoke the statutory machinery for rectifying violations. We cannot find any hints in the case law, the legislative history, interpretations by government agencies,
or scholarly commentary of any purpose of protecting
employees whose resistance to charges of discrimination made by their co-workers provokes the employers
ire. An employer would be sitting on a razors edge if
it could not discipline employees whose opposition to
discrimination charges placed the employer in jeopardy
of violating an employees statutory rights. Twisdale
did participate in an investigation of a discrimination
charge, and so comes within the literal terms of the statute. But, the first act protected by the statute is making a charge, which suggests that the subsequent acts
listedtestifying, assisting, and participatingrefer to
acts in support of the charge.
Public Policy
Judges also may look to general concepts of public policy when interpreting legal
rules. Of course, there is no firm and fast definition of what constitutes public
policy. For instance, in the chapter opener, the court feared that criminal prosecution of mothers like Jennifer would interfere with the public policy of keeping
families intact. By incarcerating Jennifer, the state could destroy the family. A court
might also suspect that punishing her could induce pregnant crack addicts to abort
their fetuses. Another court might believe that the public policy of discouraging
drug use requires that the statute be interpreted broadly. It is precisely because
of this ambiguity that some courts refrain from using public policy analysis altogether when interpreting laws. However, other courts boldly venture into the public
policy realm.
Consider the previous case where the court rules against James Twisdale despite
the fact that the literal language of the underlying statute supports his claim. Note the
manner in which the court considers the statutes purpose and public policy in reaching its decision.
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Law and Orderly Change

People cannot comply with the law unless they know and understand its requirements.
This means it must be predictable. On the other hand, in a society in which technological and social change are rapid, law must adapt to changing conditions. This is especially true when basic values are shifting. A fundamental dilemma faced by any legal
system is the need to promote certainty and stability while simultaneously accommodating flexibility and change. In short, if a legal system is to stand the test of time, it
must have some method of permitting orderly change.
Procedural Safeguards
There are several procedural requirements imposed by law on legislatures that help
to make statutes knowable to the people. For example, all bills that are introduced
are published so citizens as well as legislators can become aware of them. A bill is
assigned to a committee, which may hold a public hearing on it. If reported out of the
committee, the bill is discussed on the floor of the house that originated it. Amendments are likely both in committee and on the floor. The same process is then followed
in the other house. If signed by the chief executive, the bill becomes law. It is then
published in its final form.
The Constitution prohibits ex post facto laws. This means a new statute applies
only to actions taken after it becomes effective. Since one cannot adjust ones conduct
to a statute not yet passed, this requirement is essential to justice.
The Administrative Procedure Act requires federal rule-making agencies to publish
notices of intent to issue regulations and the text of final ones in the Federal Register.
It also requires agencies to hold hearings or consider comments from interested parties about the proposed rules. The new rules then are printed in the Code of Federal
Regulations (CFR), where all administrative rules are published.
Stare Decisis
Stare decisis is the feature of decisional law in common law systems that is most important in permitting orderly change. (The Latin phrase stare decisis means to adhere to
decided cases.) This doctrine says that a court, in making a decision, should follow
the rulings of prior cases that have similar facts (precedents). Three steps are involved
in applying stare decisis:
LO4
1. Finding an earlier case or cases with similar facts.

2. Deriving a rule of law.
3. Applying that rule to the case at hand.
Predictability
Stare decisis lends predictability to decisional law by relying on prior decisions. This
promotes a degree of consistency among judicial decisions. Of course, there are some
limits to this certainty. State court decisions are binding only within the same state.
Hence, the common law differs from state to state. A court in California may follow a
precedent established by a court in Arizona. However, it is not bound to do so.
Adaptability
Stare decisis does not render law rigid and unchanging. To understand how flexibility
in the common law is possible, one must understand more about the operation of
stare decisis.
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Concept
Summary:
Methods of
Ensuring
Predictability in
the Law
LO5
Concept
Summary:
How Stare
Decisis
Permits
Change
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Statutes
Administrative rules
Court decisions
Public hearings
Publication of enacted statutes
No ex post facto laws
Notice of intent to issue rules
Public hearings
Publication of final rules
Stare decisis (following past precedent)
First, a court has considerable freedom in picking precedent cases. Seldom are
all of the facts in a case exactly the same as in an earlier case. Therefore, the judge
or lawyer can choose, within limits, which facts to emphasize and which to disregard in seeking precedent cases. Certainly a lawyer for the plaintiff (the party
bringing the lawsuit) will choose as precedent those cases in which the decision
favors the plaintiff s position. He seeks to persuade the judge they are the precedents that should be followed. The defendant likewise argues for precedents favorable to her position.
There also is flexibility at the second step; the lawyer or judge can state the rule to
be applied from the precedent cases broadly or narrowly. A difference of a few words
in the way the rule is phrased may either include or exclude the case in dispute. The
third stepapplicationfollows the first two almost automatically. If the analysis
appears acceptable in the first step and the description of the rule seems reasonable in
the second step, the third step is convincing.
Furthermore, the highest appeals court in a jurisdiction can overrule a precedent
case. This does not occur frequently; more commonly a court will distinguish the case
before it from the precedent by finding differences in facts between the current case
and the precedent cases. The constitutional prohibition of ex post facto laws does not
apply to common or decisional law. Therefore, precedent determined to be in error or
out-of-date may be overruled without prior notice, and the new rule may be applied to
1.
2.
3.
4.
5.
Courts have broad discretion in selecting appropriate precedent.

Courts may choose which facts to stress and which to ignore in selecting precedent.
The rule of law from the precedent case may be interpreted broadly or narrowly.
Courts may distinguish the precedent case.
Appellate courts may overrule a precedent case.
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the current case. Finally, a legislature may override stare decisis and change a common
law rule by enacting a statute. The rule established by the statute applies thereafter.
Consider the following decision. Notice how the court, using the process of stare
decisis, examines past precedents to formulate its decision. Ultimately, what was the
Supreme Courts rationale for overruling the Bowers v. Hardwick case?
Lawrence v. Texas
123 S.Ct. 2472 (U.S. Sup. Ct. 2003)
FACTS
Police officers were dispatched to a private residence in
response to a reported weapons disturbance. When they
entered an apartment where John Geddes Lawrence
resided, the officers observed Lawrence and another man,
Tyron Garner, engaging in a sexual act. The two men were
arrested, charged, and convicted under a state law that
provides: A person commits an offense if he engages in
deviate sexual intercourse with another individual of the
same sex. The statute defines deviate sexual intercourse
as follows: (A) any contact between any part of the genitals of one person and the mouth or anus of another person, or (B) the penetration of the genitals or the anus of
another person with an object. When Lawrence and Garner challenged the constitutionality of the state law, Texas
cited Bowers v. Hardwick, a previous U.S. Supreme Court
decision that upheld the constitutionality of a similar sodomy statute in Georgia.
ISSUE
Does stare decisis require that the Texas statute be upheld?
DECISION
No. The Court in Bowers v. Hardwick began its discussion
in Bowers by phrasing the relevant inquiry as whether
the Constitution confers a fundamental right upon
homosexuals to engage in sodomy. That statement discloses the Courts failure to appreciate the extent of the
liberty at stake. The laws involved in Bowers and here
have far-reaching consequences, touching upon the
most private human conduct, sexual behavior, and in
the most private of places, the home. The statutes do
seek to control a personal relationship that is within the
liberty of persons to choose without being punished as
criminals. Bowers mistakenly concluded that proscriptions against sodomy by homosexuals have ancient
roots. To the contrary, early American sodomy laws were
not directed at homosexuals as such but instead sought
to prohibit non-procreative sexual activity more generally. Laws prohibiting sodomy do not seem to have been
enforced against consenting adults acting in private.
bar77716_ch01_001-027.indd 18
Over the course of the last decade, states with samesex prohibitions have moved toward abolishing them.
In summary, the historical grounds relied upon in Bowers
are not without doubt and, at the very least, are overstated. Two principal cases decided after Bowers cast its
holding into even more doubt. In Planned Parenthood v.
Casey, the Court confirmed that our laws and tradition
afford constitutional protection to personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Persons in a
homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do. The decision
in Bowers would deny them this right. Further, Romer
v. Evans struck down Colorado legislation which denied
homosexuals, lesbians, or bisexuals protection under the
states antidiscrimination law. It concluded that the provision was born of animosity toward the class of persons
affected and further that it had no rational relation to
a legitimate governmental purpose. The foundations of
Bowers have sustained serious erosion from recent decisions in Casey and Romer. In the United States, criticism
of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its
historical assumptions. When a Court is asked to overrule a precedent recognizing a constitutional liberty
interest, individual or societal reliance on the existence
of that liberty cautions with particular strength against
reversing course. The holding in Bowers, however, has
not induced detrimental reliance. Bowers itself causes
uncertainty, for the precedents, before and after its issuance, contradict its central holding. The rationale of
Bowers does not withstand careful analysis. Bowers was
not correct when it was decided, and it is not correct
today. Bowers v. Hardwick should be and now is overruled. The present case involves two adults who, with
full and mutual consent from each other, engaged in
sexual practices common to a homosexual lifestyle. They
are entitled to respect for their private lives. The Texas
statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of
the individual.
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Legal Jurisprudence
LO6
Law is much more than a set of rules. It is a dynamic, living institution that reflects the
ideas and events of the day. Yet, an often overlooked aspect of law is the legal philosophy of judges and, when applicable, jurors. Their individual values and philosophies
can greatly shape the decisions they render. This section discusses four schools of
jurisprudence (legal philosophy) that are predominant today: legal positivism, natural
law, sociological jurisprudence, and legal realism.
Legal Positivism
Legal positivists are unlikely to consider public policy and their own sense of
morality when interpreting the law. They see law as the command of legitimate
political institutions and, as such, believe it must be enforced to the letter. Legal
positivist judges confine their analysis to the plain meaning of the words and, when
necessary, to the legislative history in order to strictly follow the will of the lawmakers. While legal positivism often creates harsh results by refusing to recognize
equitable exceptions, it provides a great sense of predictability to the enforcement
of legal rules.
Bowles v. Russell
127 S.Ct. 2360 (U.S. Sup. Ct. 2007)
FACTS
A jury convicted Keith Bowles of murder and sentenced
him to 15 years to life imprisonment. Although Bowles had
30 days to file a notice of appeal, he failed to do so. Bowles
then moved to reopen the period during which he could
file his notice of appeal pursuant to a federal statute, which
allows district courts to extend the filing period for 14 days
from the day the district court grants the order to reopen.
The court granted Bowless motion, but rather than extending the time period by 14 days, the court inexplicably gave
Bowles 17 days to file his notice of appeal. Bowles filed his
notice within the 17 days allowed by the courts order,
but after the 14-day period allowed by statute. It then was
argued that Bowless notice of appeal should be rejected
because it was untimely and the court of appeals therefore
lacked jurisdiction to hear the case.
ISSUE
Does the appellate court have jurisdiction to hear Bowless
appeal?
DECISION
No. It has been long and repeatedly held that the time
limits for filing a notice of appeal are mandatory and jurisdictional in nature. Accordingly, the petitioners untimely
noticeeven though filed in reliance upon a courts
bar77716_ch01_001-027.indd 19
orderdeprived the court of appeals of jurisdiction. Jurisdictional treatment of statutory time limits makes good
sense. Within constitutional bounds, Congress decides
what cases the federal courts have jurisdiction to consider. Because Congress decides whether federal courts
can hear cases at all, it can also determine when, and
under what conditions, federal courts can hear them.
The resolution of this case follows naturally from this reasoning. Like the initial 30-day period for filing a notice
of appeal, the limit on how long a district court may
reopen that period is set forth in a statute. Bowles contends that we should excuse his untimely filing because
of the unique circumstances of this case. However, the
Court has no authority to create equitable exceptions to
jurisdictional requirements. If rigorous rules like the one
applied are thought to be inequitable, Congress may
authorize courts to promulgate rules that excuse compliance with the statutory time limits. Even narrow rules to
this effect would give rise to litigation testing their reach
and would no doubt detract from the clarity of the rule.
However, congressionally authorized rule-making would
likely lead to less litigation than court-created exceptions
without authorization. And in all events, for the reasons
discussed above, we lack present authority to make the
exception that Bowles seeks.
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Natural Law
Natural law thinkers recognize a higher set of rules that override the legitimacy of
laws promulgated by political institutions. They disagree with the idea that law and
morality are separate. Thus, natural law judges consider their own sense of morality
and may refuse to enforce statutes they believe are unjust. A major criticism of natural
law jurisprudence is that it does not provide the level of predictability attained by legal
positivism because each judges sense of morality may differ.
For instance, in Rochin v. California, 342 U.S. 165 (1952), the U.S. Supreme Court
held that police violated a suspected drug dealers due process rights when they had a
hospital pump his stomach after observing him swallow capsules they believed were
morphine. The Court found there to be a denial of due process because the conduct
of the police shocks the conscience. Still, it cautioned that the decision was not a
revival of natural law. The court obviously feared that the public might suspect
that it was not exercising sufficient detachment and objectivity. Thus, it was careful to
explain: In each case due process of law requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and
fairly stated, on the detached consideration of conflicting claims on a judgment not ad
hoc and episodic but duly mindful of reconciling the needs both of continuity and of
change in a progressive society.
Sociological Jurisprudence
Legal sociologists have a vision for where society is going or should be going and
make decisions that promote this social agenda. When interpreting statutes they look
beyond the plain meaning of the words and fully consider the legislative purpose as
well as their perceptions of the prevailing public policies. Unlike legal positivists, legal
sociologists stress the need for law to change and keep pace with the evolution of society. Under sociological jurisprudence, each case and legal decision is viewed as a piece
of a much bigger and more important puzzle.
Most of the decisions you have seen thus far and will see in later chapters illustrate a legal sociologist orientation. When a court speaks in terms of public policies
and their effect on the case at hand, this is the clue that legal sociology is at work.
However, some people wrongly conclude that legal positive decisions always lead to
harsh results while legal sociology brings about positive consequences. This is not
necessarily the case. Consider the Buck v. Bell case, 274 U.S. 200 (1927). There, the
U.S. Supreme Court permitted Virginia to sterilize women that the state found to be
mentally defective. Virginia justified its actions on the grounds that mentally defective persons would become a menace to society; if they were incapable of procreating
however, they might benefit themselves and society. In upholding the actions of the
state, the Court reasoned that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already sap the
strength of the state for these lesser sacrifices in order to prevent our being swamped
with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent
those who are manifestly unfit from continuing their kind.
The Supreme Court sacrificed an individuals personal rights in favor of what
it regarded as the best interests of society. Would you expect to see such a decision
today? No, because our concept of public policy has changed.
Legal Realism
Legal realism focuses on law in action rather than on the theoretical rules themselves.
It stresses that law must be considered in light of its day-to-day application. Legal
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realists suggest that decision makers often mask the true basis for their decision
behind the rhetoric of the law. They believe that decisions are often more attributable
to the biases and moods of decision makers than they are to the formal legal rules that
are supposed to determine the outcome.
The problem with legal realism is that it is hard to objectively prove. A judge is
unlikely to admit to having any ulterior motives when stating the reason for a particular decision. In fact, a decision maker may be acting on biases that she never has
entertained at a conscious level.
Consider the State in Interest of Gray v. Hogan case, 613 So.2d 681 (5th Cir. La.
1993). There a woman claimed to have had sexual relations with a man she met while
jogging. After becoming pregnant, a blood test indicated a 99.99 percent probability
he was the babys father. State law, however, required that scientific testing alone was
not sufficient to prove paternity. But, it would be upheld as reliable where there was
other sufficient corroborating evidence of paternity introduced at trial. The woman
knew many details about the mans family, employment, and residence, including several details about the inside of his apartment. The man testified he did not know the
woman, had never seen her before, did not date her, and never had sexual relations
with her. The court ruled that the woman had not provided sufficient evidence of his
paternity. Did the judge really believe that the law compelled this result or was he acting on a bias against women who engage in extramarital sexual relations?
The Legal Profession

Lawyers and legal advice are not only necessary when being sued or contemplating
litigation. The complexities of modern life confront businesses and their managers
with important legal questions on a daily basis. Thus, lawyers provide important assistance to people who wish to avoid legal emergencies and to plan business strategies
and tactics.
The Adversary System

Unlike many foreign legal systems where lawyers play a relatively minor role in resolving conflicts, lawyers are key participants in the U.S. judicial process. This is because
of this countrys reliance on an adversary system. The adversary system is premised on
the notion that the ultimate truth and, consequently, justice will prevail if each party
to a legal dispute is represented by competent legal counsel. Each attorney is then
expected to provide the strongest legal representation for her client.
Of course, the adversary system does not give attorneys free reign. In fact, they
may be sanctioned if they violate legal and ethical rules designed to ensure the fair
operation of the judicial process. In the next case, both the client and the attorney
were sanctioned because of the attorneys misconduct.
Ethics in
Action
bar77716_ch01_001-027.indd 21
Not everybody appreciates the role that lawyers play in the adversary system. For instance,
a South Carolina surgeon dropped a patient when he found out her husband was a trial
lawyer. Similarly, a New Hampshire neurosurgeon would not perform elective surgery on
the leader of the states trial lawyers association. These and many other doctors complain
about the role of attorneys in the high cost of medical malpractice insurance. Are the doctors behaving in an ethical manner?
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Lasar v. Ford Motor Company

399 F.3d 1101 (9th Cir. 2005)
FACTS
Steven Lasar was severely injured when he was ejected from
his Ford Ranger during a rollover accident. Lasar filed suit
against Ford alleging that Ford had designed the Rangers
door-latch mechanism defectively. Before the jury trial
began, the court issued a ruling that prohibited Ford from
introducing evidence that Lasar had consumed alcohol on
the day of the accident. In his opening statements, Fords
attorney, Lawrence Sutter, told the jury: At about 5:00 that
morning, Mr. Lasar got out of bed and went hunting for
the morning. Some time in the afternoon, he met up with
some of his friends and spent the day playing pool, visiting
some local establishments. Somewhere around 10:00 that
night, he made the decision to drive himself home. He got
into his car and he began his way back to his homestead.
Lasars attorney objected, explaining to the court that Sutters reference to Lasar visiting some local establishments
violated the evidentiary rulings. The court ruled that Sutters statement was an absolutely unacceptable violation
of his ruling. Ultimately, the court declared a mistrial and

discharged the jury. Further, the court imposed monetary
sanctions against Ford and Sutter because Sutter intentionally and in bad faith violated the ruling.
ISSUE
Did the court err in declaring a mistrial and levying sanctions against Ford and its counsel?
DECISION
No. Fords attorney clearly made a calculated attempt
to introduce evidence that Lasar was drinking before the
accident. Sutters words could reasonably be construed as
conveying the message that Lasar had been drinking at a
bar (or bars) and then made the dangerous and unlawful
decision to drive himself home while intoxicated. In light
of the hardship that Sutters bad faith violation of the order
caused to Lasar, the court, and other litigants, the courts
decision to impose monetary sanctions against both Sutter
and Ford is reasonable.
Professional Responsibilities
Attorneys are required to act in the best interests of their clients. This is because a
fiduciary relationship exists between the lawyer and her client. Because of her special
training and skills, the legal system grants the attorney a great deal of discretion in
precisely how to represent the clients interests. However, as the previous case makes
clear, there are limits to the actions an attorney may take in the course of representing
her client. These limits arise from the fact that in addition to being an agent of her
client, she also is considered to be a servant of the court.
Confidentiality
AttorneyClient Privilege
LO7
The attorneyclient privilege is an important feature of the U.S. legal profession. This
rule prevents an attorney from divulging confidential information communicated to
the lawyer by a client or potential client in the course of seeking to retain the attorney
or otherwise seeking legal advice. The privilege is derived from the notion that the
effective functioning of the judicial system will be undermined if a client does not feel
free to speak fully and honestly with his attorney.
The existence of the privilege is not dependent upon the attorney actually being
retained since it may be necessary to disclose confidential information in the course
of persuading a lawyer to take a case. The privilege also covers information divulged
to an attorneys subordinates (secretaries or paralegals). There are exceptions to
the privilege. For instance, a lawyer has a duty to report a clients statement that
he intends to commit a crime. Further, the attorneyclient privilege generally does
not cover statements made in the presence of people other than the lawyer or her
subordinates.
22
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United States v. Stewart

287 F.Supp.2d 461 (S.D.N.Y. 2003)
FACTS
Martha Stewart sold 3,928 shares of ImClone stock after
allegedly learning from her stockbroker that the corporations chief executive office was seeking to sell his shares. It
was suspected that Stewart was acting on inside information that the Food and Drug Administration was going to
reject the companys application for approval to market a
lead product. While these charges were being investigated
by various government agencies, Stewart composed an
e-mail that contained her account of the facts relating to
her sale of the stock. After sending the e-mail to one of
her lawyers, Stewart forwarded a copy to her daughter. In
preparation for trial, the U.S. Attorney sought access to the
e-mail as part of the discovery process.
ISSUE
Is Stewart required to produce the e-mail for government
inspection?
DECISION
No. Where legal advice of any kind is sought from a professional legal advisor, the communications relating to
that purpose, made in confidence by the client, are permanently protected from disclosure, except when the
protection is waived. While Stewarts e-mail to her lawyer
was originally protected by her attorneyclient privilege,
she waived that privilege when she forwarded a copy
to her daughter. This is because subsequent disclosure
to a third party by a client of a communication with his
attorney eliminates whatever privilege the communication may have originally possessed. However, the work
product doctrine protects against invading the privacy
of an attorneys course of preparation. Such protection is
necessary for the adversary system to function smoothly:

Were work product open to opposing counsel on mere
demand, much of what is now put down in writing would
remain unwritten. The interests of the clients and the
cause of justice would be poorly served. The work product
doctrine has experienced tremendous growth and now
extends its protection far beyond the original concern for
the files and the mental impressions of an attorney. Today,
to acquire work product protection, a document need not
be prepared to assist in litigation, as long as it is prepared
in anticipation of litigation. The first question, of course,
is whether Stewart has met her burden of demonstrating
that the e-mail is protectible work product. As a purely
factual statement of Stewarts recollection of events, the
e-mail does not implicate the doctrines primary concern:
the exposure to an adversary of an attorneys thoughts
in preparation for trial. Yet, a document acquires work
product protection if it was created because of anticipated
litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation.
Stewarts e-mail fits comfortably within this definition: it
is a document prepared by a party. Next, we must determine whether Stewart waived the protection by forwarding the e-mail to her daughter. Most courts have found
waiver only when the disclosure substantially increased
the opportunities for potential adversaries to obtain the
information. By forwarding the e-mail to a family member, Stewart did not substantially increase the risk that the
government would gain access to materials prepared in
anticipation of litigation. For the foregoing reasons, Stewarts e-mail is work product protected from production in
response to the governments subpoena.
Work Product Privilege
LO7
Like the attorneyclient privilege, the work product privilege is equally fundamental to the justice system. A lawyer is an officer of the court and is bound to work
for the advancement of justice while faithfully protecting the rightful interests of
his clients. In performing his various duties, however, it is essential that a lawyer
work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a clients case demands that he
assemble information, sift what he considers to be the relevant from the irrelevant
facts, prepare his legal theories, and plan his strategy without undue and needless
interference. That is the necessary way in which lawyers act within the framework of
our system of jurisprudence to promote justice and to protect their clients interests.
This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and
23
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intangible ways. Were such materials open to opposing counsel on mere demand,
much of what is now put down in writing would remain unwritten. Accordingly, the
legal system provides a broad privilege against compelled disclosure of the attorneys work product.
Now consider the following case in which Martha Stewarts claim for protection of her e-mail message under the attorneyclient privilege is denied. However,
the court does ultimately extend her the protections of the attorneys work product
privilege.
Ethics in
Action
Both the adversary system and the attorneyclient privilege may place a lawyer in a position where he knows he is defending a guilty person. Would you represent a murderer
under those circumstances?
Competence and Care

By accepting employment as the clients lawyer, an attorney agrees to exercise the skill,
prudence, and diligence expected of lawyers of ordinary skill and competence in the
community. The lawyer does not guarantee that the client will win a lawsuit. Thus, he
is not necessarily liable for malpractice when the client loses. In fact, a lawyer is not
liable for every mistake he might make. Lawyers are given a great deal of discretion in
selecting an appropriate strategy for handling a legal dispute. As long as an attorney
has a rational basis for the strategy he chooses, the courts are not likely to secondguess his professional judgment.
However, a client may successfully bring a malpractice claim when his attorney
fails to draft court-related documents properly or in a timely manner, appear at a
hearing, or assert a possible claim or defense. And important tactical decisions should
be made only after the lawyer consults with his client.
Preventive Law
In the past quarter century there has been a qualitative as well as a quantitative change
in the concern of business managers with law. In earlier times, business managers generally employed lawyers only in emergencies. A lawyer might be hired if a business
was sued, if a debt could not be collected, or if a suppliers goods were defective and
no settlement could be reached. Today, business managers also retain lawyers to help
them plan to avoid such emergencies and to comply with the rapidly growing mass of
legal rules imposed on business operations by government bodies. This use of lawyers
by businesspeople is called preventive law.
Objectives of Preventive Law

The objectives of preventive law are to arrange business plans and methods to increase
profits by (1) avoiding losses through fines and damage judgments and (2) reaching
business goals through enforceable contracts while avoiding government prohibitions.
By involving a lawyer in the business-planning process, a desired business objective can
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be reached with less legal risk. Preventive law further aims to minimize the possibility
of failure if the business has to go to court to enforce its rights.
Roles of Lawyers and Clients

Almost every business activity involves legal risks and consequences. To avoid costly
judgments and to get that to which they are legally entitled, businesspeople generally
need to be familiar with the law applicable to their activities. Studying this book will
aid in this, but it will not prepare you to be your own lawyer. Consider an analogy
from the field of medicine. While there are times when you need a doctor, you still
need a good knowledge of first aid to deal with the most common problems. Such
knowledge also will help you to know when you should call a doctoror in this case,
a lawyer.
The practice of preventive law requires a knowledgeable client as well as a knowledgeable lawyer. The client needs to understand the legal system and the applicable
law well enough to be able to communicate with the lawyer. The client needs to know
what information is relevant and necessary to the lawyers opinion. Too often clients
get into trouble because they have not fully informed their lawyers. A legal opinion is
no better than the information on which it is based. Problems also arise when clients
apply legal advice to situations not contemplated by the lawyer. This can lead to a lawsuit, or it may discourage the client from doing something that is clearly legal.
Concept
Summary:
Preventive
Law
Effective
planning
by:
Clear communication
between a knowledgeable client
and a knowledgeable lawyer
permits:
Creation of
enforceable
contracts
Increased
profits
by:
Questions
and Problem
Cases
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supplied ms to check the font
size of the word "Cases" in this
title. We checked and the size
for same matches with the size
of "Questions and
Problem" (13 pts).Please
confirm.
bar77716_ch01_001-027.indd 25
1.
2.
3.
4.
Notice of
government
regulations
Avoidance of
adverse civil
and criminal
lawsuits
What are the primary functions of law?

Describe the various ways in which the courts make law.
What is the relationship between state statutes and the state or federal constitutions?
On Matchmakers Internet dating service, an unknown person using a computer
in Berlin posted a false personal profile of Christianne Carafano. The posting
was without the knowledge, consent, or permission of Carafano, who is a popular actress who acts under the stage name of Chase Masterson. The false profile
contained several pictures of her. In response to the Matchmaker questionnaire,
the profile stated that Carafano was looking for a one-night stand as well as a
21/10/10 12:56 PM
Confirming Pages
hard and dominant man with a strong sexual appetite. The profile included Carafanos home address, e-mail address, and her telephone number. Unaware of the
improper posting, Carafano soon began to receive sexually explicit messages
responding to the profile as well as a threatening fax. Ultimately, Carafano sued
Matchmaker for invasion of privacy. Matchmaker moved to dismiss the lawsuit
on the grounds that it was immune from liability because it is an Internet service provider. The court agreed with Matchmaker. It cited the Communications
Decency Act, which grants most Internet services immunity from liability for
publishing false or defamatory material so long as the information was provided
by another party. The court admitted that its conclusion results in serious and
utterly deplorable consequences. However, it felt constrained by the statutory
language. Which school of legal jurisprudence does this court appear to be following? Explain.
5. RealNetworks offers free basic versions of two products, RealPlayer and
RealJukebox, for users to download from RealNetworks site on the World Wide
Web. These products allow users to see and hear audio and video available on the
Internet and to download, record, and play music. Before a user can install either
of these software packages, he or she must accept the terms of RealNetworks
End User License Agreement, which specifically requires that any unresolved disputes arising from the agreement must be submitted to arbitration in the state of
Washington. After using RealNetworks products and consenting to the terms of
the License Agreement, Michael Lieschke read a New York Times article, which
stated that RealNetworks products collected personal information about users
listening habits and places they had visited on the World Wide Web and sent the
information to RealNetworks via the Internet. Lieschke then filed a lawsuit in
Illinois against RealNetworks for trespass to property and privacy, alleging that
the companys products allowed it to access and intercept his electronic communications and stored information without his knowledge or consent. RealNetworks asserted that the court lacked jurisdiction to decide the case because the
License Agreement required the dispute to be arbitrated in Washington. However,
Lieschke argued that the arbitration clause was not binding because federal law
requires that agreements to arbitrate be written in order to be enforced. According to Lieschke, the License Agreement is an electronic agreement and electronic
agreements do not satisfy the written agreements provisions of the Federal
Arbitration Act. Does the electronic License Agreement constitute a writing?
Explain the process by which a court would answer this question.
6. California voters adopted an initiative that amended their state constitution. The
amendment provides: The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity,
or national origin in the operation of public employment, public education, or public
contracting. This amendment was challenged as imposing an unequal political
structure that denies women and minorities a right to seek preferential treatment
from the state and local governments. This was claimed to violate the Fourteenth
Amendment to the U.S. Constitution, which prohibits race and gender discrimination. Does the state constitutional provision violate the U.S. Constitution?
7. One wheel on an automobile manufactured by Buick Motor Company was
defectively made. Buick would have discovered the defective condition if it had
made a reasonable inspection of the wheel. Buick sold the car to an automobile dealer who in turn sold it to MacPherson. MacPherson was injured when
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Confirming Pages
the wheel collapsed. MacPherson sued Buick for negligent failure to inspect the
wheel. Buicks main defense was that it had not dealt directly with MacPherson
and thus owed him no duty. The general rule governing such suits at the time of
this action was that a buyer could not sue a manufacturer for negligence unless
there was a contract between the buyer and the manufacturer. However, there had
been a previous case, Thomas v. Winchester, where a manufacturer falsely labeled
a poison that was sold to a druggist, who in turn sold it to a customer. The customer was able to recover against the manufacturer. Further, in Devlin v. Smith,
a contractor was held liable when he improperly built a scaffold for a painter and
the painters employees were injured when it collapsed. On the basis of this information, explain how the court could permit MacPherson to recover from Buick.
8. Alan Howard is a subscriber of America Online (AOL), an Internet service provider that provides Internet access, electronic mail, and numerous other services to
its users. Howard filed a lawsuit against AOL, alleging that the company violated
the Communications Act by making unreasonable charges, practices, classifications, or regulations; by unreasonably prejudicing some subscribers by favoring
others; and by failing to protect subscriber privacy. AOL defended on the grounds
that the Communications Act regulates only common carriers and, since it was
not a common carrier, it was not governed by that statute. Carefully explain the
process by which the court will determine if AOL is a common carrier.
9. As a part of its collective bargaining agreement with the United Steelworkers of
America, the Kaiser Aluminum and Chemical Company established a new onthe-job craft training program at one of its plants. The selection of trainees for
the program was based on seniority, but at least 50 percent of the new trainees
had to be black until the percentage of black skilled craft workers in the plant
approximated the percentage of blacks in the local labor force. Brian Weber, a
rejected white applicant, would have qualified for the program if the racial preference had not existed. Weber argued that Kaisers affirmative action program
violated federal laws prohibiting discrimination on the basis of race. Is Kaisers
affirmative action program legal? Explain.
10. Zerlene Rico sued Mitsubishi Motors for negligence and strict liability. Ricos
attorney, Raymond Johnson, somehow obtained the notes of one of the defense
attorneys, James Yukevich, after a deposition with Yukevich and a defense expert.
The document provided a summary of a defense conference between attorneys
and defense experts in which the participants discussed the strengths and weaknesses of Mitsubishis technical evidence. Johnson made a copy for himself before
returning the original to the court reporter. Johnson then made additional copies
and sent them to Ricos experts and other members of her legal team. Johnson
made no effort to notify defense counsel of his possession of the document and
instead used the notes to impeach the testimony of a Mitsubishi expert during his
deposition. Yukevich, after discovering that Johnson had a copy of his personal
notes, filed a motion to disqualify Ricos legal team. Should the court disqualify
Ricos legal team and experts from representing her? Explain.
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Intro To Law

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Law, Legal Reasoning, and the Legal Profession

Law, Legal Reasoning,

Identify the basic functions of law.

List the various sources of law.

Make a legal decision by applying the three-step, stare decisis process.

Explain how law is able to change despite of stare decisis.

4 Part One Introduction to the Law

The Nature of Law

Chapter 1 Law, Legal Reasoning, and the Legal Profession 5

Keeping the peace.

A set of principles, rules, and standards of conduct that

Keeping the peace

1. Have general application in the society

2. Have been developed by an authority for that society

3. Have an associated penalty imposed upon violations

Promoting social justice

6 Part One Introduction to the Law

Substantive versus Procedural Law

Criminal versus Civil Law

Yahoo! v. La Ligue Contre le Racisme et LAntisemitisme

Yahoo! subsidiary corporations operate regional Yahoo! sites

Note: Ultimately, the Court of Appeals reversed this case, holding

Will the U.S. court issue a declaratory judgment holding the

8 Part One Introduction to the Law

Harm to another person or property

Punishment Fines, imprisonment,

Defendant may have to pay the

Checks and Balances

Chapter 1 Law, Legal Reasoning, and the Legal Profession 9

10 Part One Introduction to the Law

Administrative Rules and Decisions

Chapter 1 Law, Legal Reasoning, and the Legal Profession 11

Congress passes enabling legislation specifying the powers of the agency

Headed by a board or commission

Constitutionality of Agency Rules

12 Part One Introduction to the Law

Chapter 1 Law, Legal Reasoning, and the Legal Profession 13

United States v. Ressam

is surely the most natural reading of the word as used in

discrimination. However, suppose that Twisdale had

16 Part One Introduction to the Law

Law and Orderly Change

1. Finding an earlier case or cases with similar facts.

Chapter 1 Law, Legal Reasoning, and the Legal Profession 17

Courts have broad discretion in selecting appropriate precedent.

18 Part One Introduction to the Law

Chapter 1 Law, Legal Reasoning, and the Legal Profession 19

20 Part One Introduction to the Law

Chapter 1 Law, Legal Reasoning, and the Legal Profession 21

The Legal Profession

The Adversary System

Lasar v. Ford Motor Company

of his ruling. Ultimately, the court declared a mistrial and

United States v. Stewart

necessary for the adversary system to function smoothly:

Work Product Privilege

24 Part One Introduction to the Law

Competence and Care

Objectives of Preventive Law

Chapter 1 Law, Legal Reasoning, and the Legal Profession 25

Roles of Lawyers and Clients