EDITORIAL ADVISORS

Erwin Chemerinsky
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine, School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.

Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law, Stanford Law School
Faculty Co-Director, Stanford Criminal Justice Center
Copyright © 2016 CCH Incorporated.

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eISBN: 978-1-4548-7616-8

Library of Congress Cataloging-in-Publication Data

Names: Humbach, John A., author.

Title: Whose Monet? : an introduction to the American legal system / John A. Humbach, Pace
University Law School.
Description: Second edition. | New York : Wolters Kluwer, 2016.
Identifiers: LCCN 2015049822 | ISBN 9781454873150
Subjects: LCSH: Actions and defenses—United States. | Civil procedure—United States.
Classification: LCC KF8863 .H86 2016 | DDC 347.73/5—dc23
LC record available at http://lccn.loc.gov/2015049822
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These materials were inspired by, and portions of them adapted from,
Introduction to the Study of Law by Professor Robert J. Nordstrom of the Ohio
State University College of Law. That book stands out in my recollection as
the best I read in law school, and he as my finest teacher.
*****
I wish to express my gratitude to my colleagues, Professors Donald L.
Doernberg and Steven H. Goldberg, for their immensely helpful comments and
constant encouragement, and to John R. Horan, Esq., who generously made
available to me the litigation papers from the original case on which this book
is based.
The cover photograph is reprinted with the generous permission of the law
firm of Shearman & Sterling. Jeremy G. Epstein, Esq., a member of that firm,
and a recognized expert and published scholar in the field of art law, led the
representation of Wildenstein & Co., Inc., and he played an important role in
the ultimately successful defense of Mrs. Baldinger in the case.
In preparing this new edition, I was guided and greatly assisted by the
sharp eyes and many thoughtful suggestions that were generously provided by
Professor Doernberg and by Professor Kevin Clermont of Cornell Law School
.
The lawsuit that is described in this book is an actual case. In that case, the trial
judge determined the facts after a “bench” trial (i.e., without a jury). In the
present description, however, several procedural wrinkles have been added and
the trial process is presented in terms of a jury trial, so that students will begin
to become familiar with that most important of the common law institutions:
the jury. In editing the courts’ opinions, some minor textual modifications have
been made in order to make the procedural posture of the substantive
discussion consistent with the described pre-trial motions and a trial by jury.
For the sake of easier readability, however, these textual modifications (which
occur mainly in the opinions’ introductory and conclusory paragraphs) have
generally not been indicated.
Other than introducing the jury trial and related trial-level motions, the
procedural course and substantive outcomes in the case follow the original .
Table of Contents
CHAPTER I - Introduction 15
CHAPTER II - The Lawyer’s Task: Facts and Law 16
The Facts 21
Facts of DeWeerth v. Baldinger as Summarized by the Trial Court 25
The Law 28
CHAPTER III - Deciding Whether to Sue 18
CHAPTER IV - Deciding Where to Sue: The Court System 21
Federal Court System 36
A Note on “Civil” and “Criminal” Cases 38
1. District Courts 39
2. United States Courts of Appeals 41
3. Supreme Court of the United States 42
4. Other Federal Courts 42
State Court Systems 42
1. Trial Courts 43
2. State Courts of Appeals 44
3. State Supreme Courts 45
The Best Court for Mrs. DeWeerth? 45
CHAPTER V - Commencing a Civil Action 23
CHAPTER VI - The Complaint 25
The Content of Pleadings 55
The Complaint’s Legal Sufficiency— A Motion to Dismiss 56
Decision on Motion to Dismiss 60
 DeWeerth v. Baldinger I 61
A Note on “Briefing” Cases 64
CHAPTER VII - The Common Law 26
CHAPTER VIII - How the Common Law Became American
28
Law
Kerwhacker v. Cleveland, Columbus & Cincinnati R.R. 75
CHAPTER IX - How Lawyers and Courts Use Precedents 30
The Stability of the Common Law—Stare Decisis 79
How Do Prior Judicial Decisions “Bind” the Courts? 82
So How Do Precedents Exert Binding Force? 84
The Flexibility of the Common Law 85
Hart v. Massanari 89
CHAPTER X - The Answer 32
CHAPTER XI - The Process of “Discovery” 35
CHAPTER XII - A Motion for Summary Judgment 37
O’Keeffe v. Snyder 103
DeWeerth v. Baldinger II 110
CHAPTER XIII - Statutory Law and Administrative
38
Regulations
What Statutes Are Supposed to Do 118
How Statutes Get Enacted 120
Administrative Regulations 121
Interpreting Statutes 123
Interpreting the Statute in DeWeerth 126
CHAPTER XIV - The Trial 40
Selecting the Jury (Voir Dire) 130
Opening Statements 131
Presenting the Testimony and Other Evidence 131
Plaintiff’s Case-in-Chief 131
Defendant’s Case-in-Chief 133
Plaintiff’s Rebuttal and Defendant’s Surrebuttal 133
Motions for Judgment as a Matter of Law (or Directed Verdicts) 134
Closing Arguments 134
Charge to the Jury 135
CHAPTER XV - The Judgment (and a Motion for a
42
“Judgment N.O.V.”)
CHAPTER XVI - The Appeal 44
DeWeerth v. Baldinger III 142
CHAPTER XVII - The Aftermath 46
Solomon R. Guggenheim Foundation v. Lubell 152
DeWeerth v. Baldinger IV 154
DeWeerth v. Baldinger V 155
POSTSCRIPT 47
Appendix A - Extracts from Testimony of Gerda Dorothea
48
DeWeerth